Neutral Citation Number: [2013] UKUT 0203 (AAC)                           Appeal No: T/2013/02

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF N. DENTON, TRAFFIC COMMISSIONER for the SOUTH EASTERN & METROPOLITAN TRAFFIC AREA, 
DATED 12 DECEMBER 2012

Before:
Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Mr L Milliken, Member of the Upper Tribunal.
Mr M Farmer, Member of the Upper Tribunal.

Appellant:
LEO’S IMPORT EXPORT LTD

Attendance:
For the Appellant: 	Mr H Bahrha, Director.

Appeal heard at: 	Victory House, Kingsway, London
Date of hearing: 	27 March 2013
Date of decision: 	29 April 2013

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed.

Subject matter:	
Proportionality.

Cases referred to:
None

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area, made on 12 December 2012, when he revoked the appellant’s restricted goods vehicles operator’s licence authorising two vehicles and two trailers under Section 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995.

2)	The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:
(i)	The appellant is the holder of a restricted goods vehicles operator’s licence, authorising two vehicles and two trailers. The licence was granted in December 2010 and at the time of the public inquiry there were currently two vehicles and one trailer in possession.
(ii)	The company imports Turkish yoghurt and German sausages, distributing the produce within the UK.
(iii)	In July 2012 VOSA carried out a maintenance investigation. The Vehicle Examiner reported that:
•	the only annual MOT test on record had resulted in two failures followed by a pass at the third attempt;
•	there was an extremely poor prohibition history: three delayed prohibitions had been issued to vehicles and three delayed prohibitions had been issued to trailers at five roadside encounters;
•	no safety inspection records were available;
•	no driver daily defect reporting system was in use, and there was no evidence that a walk-round check was being carried out each day by drivers;
•	the operator’s vehicles had incurred four further prohibitions in relation to drivers’ hours and tachograph offences, and on three of these occasions fixed penalty notices had been issued, none of which had been notified to the Traffic Commissioner;
•	the operator had changed its maintenance contractor but had not informed the Traffic Commissioner. No maintenance contract was available.
(iv)	The appellant’s email response claimed that matters were now rectified. A new vehicle had replaced an older vehicle, which had been the subject of the prohibitions. The driver had been advised about European rest periods and had been instructed to take them. It was further said that a forward planner was kept on the computer system, which the VOSA vehicle examiner had failed to look at. Driver defect books were now in the vehicles.
(v)	At the subsequent public inquiry the Vehicle Examiner said that, since his initial report, there had been a further failure to pass an MOT test when an authorised vehicle had been presented for test on 22/11/2012.
(vi)	The appellant company’s director, Mr Bahrha, told the Traffic Commissioner that the VOSA test results were unfair. The appellant produced some invoices to support his claim that safety inspections were taking place, but many disclosed the sort of defects that should have picked up on the driver walk round check. Mr Bahrha admitted that, although he had acquired them, driver defect reporting books were still not in use and no walk-round checks were being performed. One invoice suggested that a vehicle had to be attended at the roadside because it had run out of diesel. Mr Bahrha denied that this had happened.
(vii)	In relation to tachographs and driver’s hours, Mr Bahrha did not know whether the company vehicles had digital or analogue tachographs. He agreed that he had never looked at tachograph charts or downloaded any tachograph information. Mr Bahrha subsequently emailed the Traffic Commissioner’s office to say that one vehicle was analogue and another digital, and he asked for advice on how to obtain a digital tachograph reader.
(viii)	In relation to the forward planning system, Mr Bahrha presented an Excel spreadsheet showing future safety inspections and MOT dates. However, this was not (as inferred in his email and explicitly claimed at the hearing) an in-house printout provided from the appellant’s computer. Mr Bahrha subsequently emailed a list of dates rather than a computerised forward planner and said that this represented his own system.
(ix)	Mr Bahrha said that he was prepared to undergo further training and accepted that he had not paid much attention to the undertakings on the licence.
(x)	The Traffic Commissioner reserved his decision and then produced a written decision setting out his conclusions and reasons.
(xi)	The Traffic Commissioner did not find Mr Bahrha’s assurances about future conduct to be convincing and he noted that, even after having been called up to public inquiry, the appellant had taken few steps to improve matters. Mr Bahrha’s answers during the public inquiry revealed that he still had a very inadequate understanding of his responsibilities. 
(xii)	On the positive side, the Traffic Commissioner accepted that the appellant had purchased a new vehicle, although this had still failed its MOT in November 2012. In any event, the age of a vehicle did not justify poor standards of maintenance – in fact the opposite should be the case.
(xiii)	On the negative side were the serious and on-going maintenance failings as reported by VOSA, including the many prohibitions issued in a comparatively short period of time, the drivers’ hours offences, the lack of maintenance records or systems, the failure to ensure that safety inspections and walk-round checks were routinely taking place and being recorded, and a poor MOT record. It was clear that Mr Bahrha had taken little action since the VOSA visit. Driver defect books had been bought, but they were not being used.
(xiv)	The Traffic Commissioner found that Mr Bahrha did not have a proper understanding of what he should be doing to ensure compliance with drivers’ hours and tachograph rules.
(xv)	The Traffic Commissioner considered whether or not it was likely that the operator would, in future, operate in compliance with the operator licensing regime. The Traffic Commissioner concluded, based on what had (or had not) happened since the VOSA maintenance investigation, that this was unlikely. Although this was a restricted licence, the Traffic Commissioner also asked whether or not the operator’s conduct was such that the operator ought to be put out of business. He found that, if this was the consequence of revoking the appellant’s operator’s licence, then this was appropriate and proportionate. In two years, the operator (with two vehicles and one trailer) had amassed a significant and proportionately high number of prohibitions for poor maintenance and for driver’s hours offences. Moreover, the appellant had been sending a 44 tonne truck on European operations without any idea about tachograph rules. Despite assurances to VOSA, the appellant had failed to implement daily driver defect reporting, which was one of the most basic safety precautions of all. 
(xvi)	The Traffic Commissioner revoked the licence with effect from 13/1/2013, but he did not disqualify the appellant or Mr Bahrha, indicating that the appellant could apply for a licence in future. However Mr Bahrha must, at least, have attended an operator licence awareness course and acquired a basic knowledge of driver’s hours and tachograph rules, and of good maintenance practice.

3)	At the hearing of this appeal, the appellant company was represented by Mr Bahrha in person.

4)	Essentially Mr Bahrha’s contention was that the Traffic Commissioner’s action had been disproportionate and failed to take account of the positive matters that he had raised. He could have produced more evidence, particularly in relation to tachographs, if he had been asked to. He referred to his explanatory email to VOSA dated 24/7/2012 in which he explained that he had purchased a new vehicle, and in which he said that a mechanic came and checked both vehicles and trailers on a regular basis.

5)	Mr Bahrha complained that the VOSA Vehicle Examiner had not asked to see any paperwork, and he said that the drivers did do their routine checks around the vehicle. Mr Bahrha referred to the invoices that had been produced to the Traffic Commissioner to demonstrate that safety inspections had been occurring, and he said that vehicles now had trackers which showed the distance that they covered and their location. Mr Bahrha employed two drivers on each vehicle so he did not have to worry about driver’s hours as they could share the driving. Mr Bahrha felt the Traffic Commissioner’s fears for the future were based on speculation. The company had paid all its fines and had learnt its lesson.

6)	The tribunal is unable to find merit in Mr Bahrha’s submissions. It is hard to identify any aspect of operator compliance where there has not been a significant failure. No adequate or urgent rectification was put in place either after each prohibition was issued, or even after the unsatisfactory VOSA maintenance investigation.

7)	An example of Mr Bahrha’s attitude can be seen in his email response to VOSA in which he states:

“Our driver has been advised by us with regards to the European rest periods and has been instructed to take them. One defective tachograph which has been rectified long time ago. As all computer technology instruments from time to time they go wrong. It is sods law”.

8)	At the public inquiry, Mr Bahrha said:

“I have given strict instructions for my driver. If they do not follow my instruction, that is not my fault.”

and subsequently:

“Each VOSA inspector is different. Some have a certain attitude and some don’t. Some of them, it’s what side of bed they wake up in the morning – if it’s good side or bad side. They sometimes pick on little things. For poor MOT history, I also blame the MOT inspectors for not being fair throughout.”

9)	The Traffic Commissioner said: “Mr Bahrha, you are coming across to me as somebody who is quite hostile to VOSA”. Mr Bahrha replied that if there had been any fault by him, he had rectified it.

10)	We reject the suggestion that the VOSA Vehicle Examiner did not ask to see relevant documents at the maintenance investigation – the report and evidence at the public inquiry clearly demonstrate that this was a professional investigation, and that Mr Bahrha, although friendly, did not wish to take on board the advice and warnings given. The Traffic Commissioner was perfectly entitled to accept the evidence of the Vehicle Examiner, and to form a negative view of Mr Bahrha.

11)	Although Mr Bahrha asked for a probationary period, in effect he had already had this, having had ample and repeated warning of the failures in maintenance and compliance systems (and safety-critical consequences of such failures) since the licence was issued. The Traffic Commissioner cannot be expected to wait until a serious accident has occurred before taking preventative regulatory action.

12)	In our view, the Traffic Commissioner had no choice. This was a very bad case and Mr Bahrha has done himself no favours by his response to prohibitions, the maintenance investigation, the call-up to public inquiry, and professional advice and warnings. Mr Bahrha has been sending a large goods vehicle abroad with extremely poor knowledge of legal requirements and obligations.

13)	This was a restricted operator’s licence and there is no evidence, beyond mere assertion, that revocation will actually put the operator out of business, as the appellant could consider subcontracting the haulage side, if necessary. Insofar as it was necessary in order to ensure proportionality, we are satisfied that the Traffic Commissioner considered that revocation was required, whatever the consequences to the appellant’s business.

14)	The Traffic Commissioner undertook the correct balancing exercise and, in a short but comprehensive decision, clearly explained to the appellant why the licence had to be revoked. The outcome was proportionate and justified and left the door open for Mr Bahrha to again apply for a licence if, belatedly, he was prepared to properly face up to the duties and obligations involved in holding an operator’s licence.

15)	The appeal is dismissed. The revocation will come into effect at 23:59 on 31 May 2013.

Judge Mark Hinchliffe, DCP
29 April 2013