Neutral Citation Number: [2014] UKUT 0499 (AAC)                            Appeal No: T/2014/52

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

ON APPEAL FROM THE DECISION OF JOAN AITKEN
DEPUTY TRAFFIC COMMISSIONER for the NORTH WEST OF ENGLAND
DATED 6 MAY 2014

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

Appellant:
JOHN PILKINGTON

Attendance:
For the Appellant: 	Mr Pilkington in person, assisted by Ms K Chesterton

Appeal heard at: 	Field House, Breams Buildings, London
Date of hearing: 	8/10/2014
Date of decision: 	4/11/2014

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be allowed.
The matter is remitted back to be re-heard by a Traffic Commissioner
or Deputy Traffic Commissioner other than Miss Aitken

Subject matter:	
Application to lift disqualification. Criteria to be considered.

Cases referred to:
2008/593 Martin John Graves v Secretary of State for Transport
Randolph Transport Limited & Claire Tottenham [2014] UKUT 0460 (AAC)

REASONS FOR DECISION

1)	This was an appeal from the decision of Miss J Aitken, sitting as a Deputy Traffic Commissioner for the North West of England, made on 6 May 2014, when she refused to cancel a disqualification imposed upon the appellant in 2004.

2)	The factual background to this appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision. The history of this matter is somewhat complex but can be summarised as follows: 
(i)	In 2004, the appellant was involved with two operator’s licences. In his personal capacity, the appellant held a standard national public service vehicle (PSV) operators licence authorising two vehicles. The appellant was also a partner (along with Raymond Pilkington and Mary Pilkington) in a company trading as Accrington Buses, and the partnership held a standard national PSV licence authorising 15 vehicles.
(ii)	At this time, and having already built up something of a history before the Traffic Commissioner, the appellant found himself again called up to public inquiry in relation to both licences.
(iii)	The call-up letter relating to John Pilkington in his personal capacity alleged that his public passenger vehicles were not maintained in a fit and serviceable condition. Failings included time gaps between safety inspections being stretched up to 9 weeks (from 4), and failings in the driver defect reporting systems. Criminal convictions for violence were referred to, including a conviction for assault, sustained at Accrington Magistrates Court on 19/2/2004 – something which was not reported to the Traffic Commissioner’s office, despite a clear previous undertaking to do so, given at a public inquiry in 2001.
(iv)	Meanwhile, the Accrington Buses partnership was also called up for failing to operate a local service as registered, operating a local service in contravention of the Transport Act 2000, and failing to comply with the Act. Additionally, there were allegations of failure to maintain buses operated under the licence, and receipt of roadworthiness prohibitions. Again safety inspections were stretched up to 9 weeks, and there were concerns regarding driver defect reporting.
(v)	By decision letters dated 21 June 2004, it is recorded that after conjoined public inquiries held at Accrington on 11 June 2004 before Traffic Commissioner B. Bell, both licences were revoked with effect from 23 July 2004. In relation to both licences, the Traffic Commissioner found that the appellant had lost his repute. In addition the appellant was disqualified “for an indefinite period from being the holder of an operator licence”. The reasons for her decision were said to be unsatisfactory maintenance, failure to operate local services, and failure to comply with statements of intent and undertakings given. An appeal by the appellant against the disqualification was dismissed.
(vi)	Thereafter, the appellant made a number of unsuccessful applications for an operator’s licence.
(vii)	In 2006, a company called Ribble Valley Coaches Ltd (Ribble Valley) was granted a standard international PSV operators licence authorising eight vehicles. On 6 June 2011 the appellant became the company secretary and sole director of Ribble Valley and very shortly thereafter the Traffic Commissioner’s office received a licence renewal checklist that notified the office that Mr Pilkington had replaced the previous director of the company. Although the appellant’s previous regulatory history was known in the office, the matter was not immediately referred to the Traffic Commissioner. However, the Traffic Commissioner did become aware in early 2013, and a public inquiry, followed by an appeal to this tribunal, followed.
(viii)	The outcome of these hearings was an acceptance that, back in 2004, the Traffic Commissioner had not made an order under S.28(4) Transport Act 1985 so, as a matter of law, there was no contravention of the terms of the appellant’s personal disqualification, and the Ribble Valley licence was not void. However, the appellant’s involvement with Ribble Valley raised obvious concerns as to the company’s repute, and - after considering all the relevant circumstances - the tribunal substituted its decision for that of the Traffic Commissioner and, in a decision dated 2/9/2013, ordered the revocation of the Ribble Valley licence.
(ix)	By email sent the very next day, the appellant finally made formal application for the cancellation of the disqualification – more than 9 years after it was first imposed. The application was made under S.28(6A) Transport Act 1985. Because of her previous involvement, the Traffic Commissioner decided to ask a colleague to preside at the public inquiry, and the Traffic Commissioner for Scotland travelled to the North West of England to preside as Deputy Traffic Commissioner in that area.
(x)	The public inquiry was held on 10/4/2014 and the appellant attended unrepresented, and assisted by Ms Chesterton. The Traffic Commissioner was at pains to put the appellant at his ease, stressing that, “if anyone is in any physical discomfort and requires to go and use the facilities, if you would just indicate, we will have a wee break …”. She then continued:
“So I find when I am meeting an operator or an applicant for a licence for the first time, or someone wants the removal of a disqualification and I have not met them before, if it has not been one of the cases in which I have disqualified the person or I have had previous inquiries, I find that what is really, really helpful to me is what I call the Cilla Black question. I do not know if you have ever watched ‘Blind Date’ but it always starts with ‘What’s your name and where you come from?’ And I find that is a really good starting point because you may think I know things about you, and I know something about you because we have got a load of papers about you, but I want to make sure, and make sure that you make sure, that I do know about you, who you are, and where you come from.”
(xi)	After those preliminaries, the Deputy Traffic Commissioner put the ball, as it were, in the appellant’s court:
“Q. So, if you would just like to say what you want to say to me, Mr Pilkington, I would be very grateful.
A. There’s a lot of things …”
(xii)	Thereafter the appellant described his business of buying and selling PSVs, and explained how, after the death of the owner of Ribble Valley, he went to the premises intending to buy the fleet but “ended up taking it over”. He notified his involvement on the licence checklist and he was half-expecting to be called up to public inquiry, but this did not immediately happen. Business then continued in a satisfactory way until 2012 when, following an incident with a driver on a school contract, Ribble Valley lost its school contract work with Lancashire County Council and a substantial dispute followed, with the appellant feeling that he was not treated fairly.
(xiii)	What then happened is not entirely clear because there was no evidence before the Deputy Traffic Commissioner from the Council, but it appears that the appellant decided to try and use his registered services as a way of still running the school contracts (which he had lost) and it was the appellant’s intention to then invoice the council for any school children carried. The council, however, had given the contracts to other operators and did not agree to this arrangement. Nevertheless, the appellant sent buses to the schools and the presence of the Ribble Valley buses outside schools, apparently competing with the new contract holders, caused (it was said, or assumed) confusion and distress.
(xiv)	It should be noted that all of the story about this came from the appellant in his evidence to the Deputy Traffic Commissioner. It had not been raised in the call-up letter and no evidence about it was available from any other source.
(xv)	At the end of the appellant’s evidence about this, the Deputy Traffic Commissioner asked the appellant what else he wanted to tell her. The appellant pointed out that Ribble Valley had a good maintenance record (again, there was no contrary evidence), and there had been no roadworthiness prohibitions, and no drivers’ hours or tachograph offences or irregularities. Nor had the appellant been convicted of any offences since 2004.
(xvi)	Ms Chesterton gave evidence and described how she had met the appellant and they were both domestic and business partners. She had business and accounts experience. She pointed out to the Deputy Traffic Commissioner that the appellant had been disqualified over nine years before and, since his return to the industry through Ribble Valley, there had not been any non-compliance, and vehicle maintenance and tachograph compliance procedures were in place and effective. There had been a VOSA inspection, she said, which was satisfactory.
(xvii)	The Deputy Traffic Commissioner noted that, in the past, the Traffic Commissioner had commenced enquiries into the situation regarding the schools and the appellant had not kept appointments to attend at the Traffic Commissioner’s office to discuss this. Ms Chesterton said that they were waiting for some disclosure of information before attending. The appellant agreed that this was the reason: “We said we’re not gonna come unless we’ve got something to defend, so I think that was our stand”. Subsequently, it was also said that the appellant had not received a letter from the Traffic Commissioner’s office.
(xviii)	The appellant told the Deputy Traffic Commissioner that as soon as the Ribble Valley licence was revoked, the company ceased operations.
(xix)	In due course the Deputy Traffic Commissioner said that she had no further questions, but she might ask staff to obtain copies of the service registrations and she would also reflect on whether to ask the Council to provide some evidence (“I think I might ask the Council for its side of the story”). She said that it was in the appellant’s interests that further enquiries should be made and, “I will decide what I want to ask the Council”. The hearing then ended, with no clarity as to whether or not the case was being adjourned to be re-listed, or whether or not it had concluded (and if it had, what opportunity the appellant would have to respond to any further evidence obtained).
(xx)	The next that the appellant heard was that the Deputy Traffic Commissioner had reached her decision and prepared a written judgment dated 6 May 2014. She refused the application to cancel the disqualification because she was not satisfied as to the appellant’s good repute, and she was not satisfied that he could be trusted with an operator’s licence. She said that she had not directed Lancashire County Council to participate in the hearing because:
“the matters of concern to the Council were matters back in 2012. Thus, memories were bound to be dated. I also did not think that anything would be gained from a ‘who said what to whom at the school gate’ approach to the evidence.”
(xxi)	Nevertheless, the Deputy Traffic Commissioner considered that the appellant’s conduct in relation to the school contracts will have inevitably led to ‘upsets, friction and insecurities’. Whilst the appellant had not cancelled the registration of the services, his expectation that he could invoice the council was not based upon any solid legal foundation. There was no entitlement to transport school children other than if the children had come onto the buses as ordinary travellers as distinct from scholars expecting free travel paid by the Council.
(xxii)	Additionally, the Deputy Traffic Commissioner considered that the appellant had failed to attach sufficient importance to attending at various meetings and previous hearings, and she did not consider the explanations offered to be satisfactory.
(xxiii)	In the event, the Deputy Traffic Commissioner found that the appellant’s attitude and conduct showed that the appellant had not regained his good repute and he still could not be trusted to engage properly with the Traffic Commissioner.

3)	At the hearing of this appeal, the appellant represented himself, supported and assisted by Ms Chesterton. The first point made was that the hearing closed, “with what was said to be an adjournment”. No further notice of the adjournment, or what was being considered, was received, and instead the appellant simply received the written decision.

4)	We find merit in this submission. Although a careful perusal of the transcript does not show any use of the word “adjournment” by the Deputy Traffic Commissioner, the way the hearing wound up would, we think, have given rise to the expectation that matters continued. There was a strong indication that further evidence would be sought from the Council and, if it had been, natural justice would have required that it be served and the public inquiry reconvened. The appellant had not been asked for a final submission and had not given one, and there was nothing said to suggest that the matter would progress to decision without more ado. Especially where a person is unrepresented, fairness requires clarity as to the process, the stage reached, and what will happen next.

5)	The next point was that the decision was based on irrelevant matters, with undue emphasis placed on the story relating to school contracts. The registered services were properly registered and the operator was entitled, even obliged, to run them. There was no evidence of “upsets, friction or insecurities” and the services were operated without complaint.

6)	We find some merit in this submission, although we do have concerns as to the appellant’s response to the loss of the school contracts. The difficulty is that, although this was something of which the Traffic Commissioner’s office was aware (and, indeed, had endeavoured to investigate) no evidence was prepared or presented in advance of the public inquiry and the Deputy Traffic Commissioner then decided not to obtain and serve any evidence subsequently, because nothing would be gained from a ‘who said what to whom at the school gate’ approach to the evidence. We therefore consider that the Traffic Commissioner placed undue weight on this aspect of the evidence, failed to address what would happen if the appellant had not operated the company’s registered services, and made assumptions about the consequence of the appellant’s behaviour without presenting any evidence whatsoever to support those assertions.

7)	The third point made was that the Deputy Traffic Commissioner failed to address the positive features of the case, namely the absence of any evidence of non-compliance, and clear evidence of good compliance in all aspects of maintenance, drivers hours and the avoidance of criminal conduct. Ms Chesterton said “We expected to discuss the disqualification and the reasons for it.”

8)	We find merit in this submission. The Deputy Traffic Commissioner failed to consider why the disqualification had been imposed in the first place and then failed to consider whether, over nine years later, it was still necessary in the public interest that the disqualification be maintained. It was known that the appellant had been running Ribble Valley prior to the revocation, and we are surprised that no report from VOSA was ordered, prior to the public inquiry, to describe the levels of compliance before revocation. 

9)	The final point made was that no disrespect to the Traffic Commissioner had been intended, but the appellant had not been prepared to attend at a meeting about the highly contentious matter of the lost school contracts without information about the Council’s allegations, which they had never seen.

10)	We do not necessarily approve of the appellant’s response, and there were other instances of failure to attend, but we consider that this is also over-stated as grounds for a negative finding in relation to repute. Non-attendance at properly convened public inquiries may or may not be indicative of a wilful failure to engage with the Traffic Commissioner, but it will usually have its own consequences at the time. In the event, without a great deal more, we do not consider in this case that it can be used as a principal reason for deciding that the public interest requires that a disqualification, already over nine years in existence, should continue indefinitely.

11)	We have considered to what extent the Deputy Traffic Commissioner’s approach (of putting the ball into the applicant’s court and sitting back and waiting to hear what is said) is the fairest and most effective way of proceeding. The tribunal said in 2008/593 Martin John Graves v Secretary of State for Transport that, in general, the burden in an application for cancellation of a disqualification does lie upon an applicant. However, it was only in finely balanced cases that the positioning of the burden of proof would be likely to make a difference.

12)	Given the access to information and intelligence that the Traffic Commissioner’s office has, we consider that when an application is received, it would be good practice for the Traffic Commissioner to consider, as a preliminary matter, whether there is any information that he or she would wish to put to the applicant at any hearing, and whether there is any relevant information that can reasonably be obtained in order to assist in the determination of the matter. If there is then, as a matter of fairness, it should be obtained, properly set out in (or attached to) the call-up letter, and presented at the public inquiry in the usual way.

13)	Recently, and since the public inquiry in this case, the tribunal considered the test to be applied in cases such as this. In Randolph Transport Limited & Claire Tottenham [2014] UKUT 0460 (AAC) the tribunal, echoing and developing the words of the tribunal in Martin John Graves, said:

“The test in such cases will be whether or not the public interest requires that that the disqualification should be maintained; the onus of establishing that the public interest does not so require will be on the applicant; and the starting point in nearly every case will be the original circumstances of, and reasons for, the disqualification – together with any evidentially established relevant events or developments occurring or arising subsequently, and the effect (if any) of the passage of time.”

14)	We consider that the appeal must be allowed and the matter re-heard by a different Traffic Commissioner or Deputy Traffic Commissioner. At the re-hearing, we would expect the Commissioner to approach the issues in the case in the manner suggested above.

Judge Mark Hinchliffe, DCP
4/11/2014