Statutory document 10: principles of decision making & the concept of proportionality

Question 1

1. Guidance

Accepted Answer

1.1 Basis of Guidance

This Guidance may be subject to decisions of the higher courts and to subsequent legislation. The Senior Traffic Commissioner has extracted the following principles and examples from existing legislation and case law.

The responsibility for taking action under the relevant legislation is vested in the individual traffic commissioner dealing with a case. That responsibility cannot properly be fettered, the Public Passenger Vehicles Act 1981 and the Goods Vehicles (Licensing of Operators) Act 1995 both make it clear that a presiding commissioner may hold such an inquiry as he or she thinks necessary for the proper exercise of his or her functions (see Statutory Guidance and Statutory Directions on Case Management for further references regarding independence). Whilst there is a strong argument in favour of consistency of approach this should not be mistaken for uniformity of decisions and consistency must not be pursued at the expense of the merits of an individual case. Traffic commissioners act as a single person tribunal. They therefore exercise their discretion with regard to the principle of proportionality as enshrined in British, European and human rights law (Human Rights Act 1998). The independence and impartiality of traffic commissioners is guaranteed as part of the obligations on the State (see Al-Le Logistics Limited etc [2010] EWHC 134 (Admin) paragraph 92 and 2000/065 A M Richardson trading as D J Travel Consultants v DETR).

The legislation exists to ensure the promotion of road safety and fair competition and traffic commissioners will have regard to the relevant decisions of the higher courts and the principle of proportionality in deciding what intervention is commensurate with the circumstances of each individual case. See 2002/217 Bryan Haulage (No 2), Muck It Limited and Others v Secretary of State for Transport [2005] EWCA Civ 1124 and Crompton trading as David Crompton Haulage v Department for Transport North West Area [2003] EWCA Civ 64 , 2009/225 Priority Freight Limited and Paul Williams. Where there has been non-compliance traffic commissioners must have regard to the potential impact on an operator of any regulatory action and make an assessment of the operator as at the date of the decision. This Statutory Guidance is mainly concerned with potential regulatory interventions against existing licences.

1.2 Goods Vehicles Legislation: The Goods Vehicles (Licensing of Operators) Act 1995

Section 35 of the Act provides that it is for the traffic commissioner to decide whether a public inquiry is necessary for the proper exercise of the commissioner’s functions under the Act and may decide to join two or more cases in one hearing (see 2011/028 Heart of Wales Bus & Coach Co Ltd & Clayton Francis Jones).

Any hearing will normally be in public subject to the circumstances arising set out below.

Paragraph 2 of Schedule 4 of the Goods Vehicles (Licensing of Operators) Regulations 1995 provides the following:

The traffic commissioner may direct that the whole or any part of an inquiry be held in private if he is satisfied that by reason of:

(a) the likelihood of disclosure of intimate personal or financial circumstances;

(b) the likelihood of disclosure of commercially sensitive information or information obtained in confidence; or

(c) exceptional circumstances not falling within sub-paragraphs (a) or (b),

it is just and reasonable for him to do so.

Where the hearing is in private the traffic commissioner may admit such persons as he considers appropriate.

Without prejudice to the above, where any question relating to the appropriate financial resources of any persons is to be or is being considered during an inquiry, the traffic commissioner may exclude such persons as he thinks fit from the part of the inquiry during which that question is considered.

Notwithstanding the foregoing provisions of this paragraph, a member of the Council on Tribunals or the Scottish Committee of that Council may be present in his capacity as such notwithstanding that the inquiry or part of an inquiry is not in public and such a person shall not be excluded under sub-paragraph (4).

Regulation 20 of the Goods Vehicles (Licensing of Operators) Regulations 1995 applies Schedule 4 of those Regulations in respect of an inquiry held by a traffic commissioner. This allows the presiding traffic commissioner to determine the procedure at an inquiry. A person entitled to appear at an inquiry is entitled to give evidence, to call witnesses, to cross examine witnesses and to address the traffic commissioner both on the evidence and generally. The traffic commissioner, however, may refuse to permit:

(a) the giving or calling of evidence;

(b) cross examination of persons giving evidence; or

(c) the presentation of any other matter, which the traffic commissioner considers to be irrelevant, repetitious, frivolous or vexatious.

The presiding traffic commissioner may exclude a person who, in the opinion of the traffic commissioner, is behaving in a disruptive manner. A traffic commissioner may proceed with an inquiry in the absence of any person entitled to appear if the traffic commissioner is satisfied that it is fair to do so, proper notice having been given. Any person present at an inquiry may submit any written evidence or other matter in writing before the close of the inquiry. A traffic commissioner may not take into account any written evidence or other matter in writing received by him from any person before an inquiry opens or during any inquiry unless the traffic commissioner discloses it.

Section 27 of the Act requires a traffic commissioner to revoke a standard licence if at any time it appears that the licence-holder no longer meets the requirements of section 13A(2):

(a) has an effective and stable establishment in Great Britain,

(b) is of good repute; and

(c) has appropriate financial standing;

or the transport manager does not meet the requirements of section 13A(3):

(a) is of good repute,

(b) is professionally competent, and

(c) is not prohibited from being appointed as a transport manager.

Section 26 of the Act allows a traffic commissioner to direct, at his or her discretion, that an operator’s licence be revoked, suspended or curtailed on grounds that can be summarised as follows:

(a) use of an unauthorised site as an operating centre;

(b) contravention of a licence condition;

(c) that during the last five years there has been;

a relevant conviction (see Statutory Guidance and Statutory Directions on Good Repute and Fitness) of the licence-holder;
a relevant conviction of a servant or agent of the licence holder (as above);
a prohibition in respect of an unfit or overloaded vehicle;

(ca) fixed penalty or conditional offer issued

(d) that during the last five years, there have been numerous convictions of the licence-holder or a servant or agent of his of offences set out in paragraph 5(j) of Schedule 2 (see Alternative disposals to a public inquiry);

(e) that the licence-holder made, or procured to be made, for the purposes of his application, an application for the variation of the licence, or a Schedule 4 application, a statement of fact that, whether to his knowledge or not, was false, or has not been fulfilled;

(f) that any undertaking recorded in the licence has not been fulfilled;

(g) that an individual licence-holder has been adjudged bankrupt or made the subject of a Debt Relief Order or, a company holding a licence has gone into liquidation (excluding voluntary liquidation for the purposes of reconstruction, See Statutory Guidance and Statutory Directions on Legal Entities and Good Repute and Fitness);

(h) that since the licence was issued or varied there has been a material change in the circumstances of the licence-holder that were relevant to the issue or variation;

(i) that the licence is liable for revocation, suspension, curtailment following a direction under section 28(4).

The offences set out at (d) above are:

(a) an offence under section 53 of the Road Traffic Act 1988 (plating certificates and goods vehicle test certificates;

(b) an offence committed in relation to a goods vehicle consisting in the contravention of any provision (however expressed) contained in or having effect under any enactment (including any enactment passed after this Act) relating to:

the maintenance of vehicles in a fit and serviceable condition;
limits of speed and weight laden and unladen, and the loading of goods vehicles; or
the licensing of drivers.

(c) an offence under:

this Act;

Part V of the Transport Act 1968 or section 233 or 235 of the Road Traffic Act 1960 so far as applicable (by virtue of Schedule 10 to the 1968 Act) to licences or means of identification under that Part.

The conditions on the licence impose an obligation on the licence holder to inform the traffic commissioner of any change in the following requirements for a standard licence: transport manager, stable and effective establishment, financial standing. The traffic commissioner has discretion to grant a period of grace in respect of each of these requirements.

In the event of curtailment or suspension, the traffic commissioner may make a direction under section 26(6) that in effect any motor vehicle specified on the licence may not be used under any other operator’s licence. Section 26(8) allows a traffic commissioner a discretion to: (a) cancel the direction (together with any order under subsection 6), (b) cancel any such order; or (c) with the consent of the licence-holder, vary the direction suspending or curtailing a licence or any such order under section 26(6).

Section 28 of the Goods Vehicles (Licensing of Operators) Act 1995 enables the disqualification of a person from holding an operator’s licence to be varied or cancelled, and it is open to any such person to make application to the traffic commissioner to vary an order. Paragraph 16(2) of Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995 provides that where a traffic commissioner determines that the transport manager is no longer of good repute the traffic commissioner must order the disqualification of that transport manager but paragraph 17 allows the traffic commissioner to cancel or (with the consent of the disqualified person) to vary the order and to specify measures with which the disqualified person must comply before the order can be cancelled or varied.

Regulation 6 of the Goods Vehicles (Community Licences) Regulations 2011 provides that, subject to the provision of relevant information, a person issued with a standard licence authorising international operations is entitled to be issued with a UK licence for the Community by the competent authority (in this case the traffic commissioner). Regulation 7 provides that where a traffic commissioner determines that the operator has lost their repute, s/he may order the permanent or temporary withdrawal of some or all of the certified copies or the UK Licence for the Community.

1.3 1.3 Passenger Carrying Vehicles Legislation: The Public Passenger Vehicles Act 1981

Section 54 of the Act enables traffic commissioners to hold such public inquiries as they think fit in connection with the exercise of their functions. It also gives traffic commissioners discretion as to where to hold such public inquiries and to join two or more cases in one hearing. It imposes a requirement in respect of proper notification of a hearing and provides that public inquiries shall be held in public subject to the circumstances set out below.

Paragraph 7 of The Public Service Vehicles (Traffic Commissioners: Publication and Inquiries) Regulations 1986 provides the following:

A traffic commissioner may restrict in such manner as he directs attendance of the public at any inquiry so far as that inquiry relates to the financial position of any person, provided that a member of the Council on Tribunals or its Scottish Committee shall be entitled to attend notwithstanding that attendance is restricted.

Regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995 provides that a traffic commissioner shall not refuse an application for a licence, or grant it other than as requested, without giving the applicant an opportunity to state his or her case at an inquiry, save where the application or the applicant’s conduct in relation to it is frivolous or unreasonable.

Section 17(1) of the Act requires a traffic commissioner to revoke a standard licence if at any time it appears that the licence-holder no longer meets the requirements of section 14ZA(2):

(a) has an effective and stable establishment in Great Britain,

(b) is of good repute,

(c) has appropriate financial standing, and

(d) is professionally competent;

or the transport manager does not meet the requirements of section 14ZA(3):

(a) is of good repute,

(b) is professionally competent, and

(c) is not prohibited from being appointed as a transport manager.

Section 17(2) allows a traffic commissioner to direct that an operator’s licence be revoked, suspended or curtailed on the grounds in section 17(3) that can be summarised as follows:

(a) that the licence-holder made, or procured to be made, for the purposes of his application, an application for the variation of the licence, or a Schedule 4 application, a statement of fact that, whether to his knowledge or not, was false, or has not been fulfilled;

(aa) that any undertaking recorded in the licence has not been fulfilled;

(b) that there has been a contravention of any condition attached to the licence;

(c) that there has been a prohibition issued under section 69 of the Road Traffic Act 1988 or that the licence holder has been convicted of an offence under section 71(1)(a) or (b);

(d) that a restricted licence-holder no longer satisfies the requirements of Section 14ZB (to be of good repute and/or to be of appropriate financial standing);

(e) that since the licence was issued or varied there has been a material change in the circumstances of the licence-holder that were relevant to the issue or variation;

(f) that the licence is one where a traffic commissioner has made an order for disqualification pursuant to Section 28(4) of the Transport Act 1985.

Section 17(5B) allows a traffic commissioner discretion to: (a) cancel a suspension; or (b)with the consent of the holder of the licence, vary the period for which it is suspended.

The conditions on the licence impose an obligation on the licence holder to inform the traffic commissioner of any change in the following requirements for a standard licence: transport manager, stable and effective establishment, financial standing. Section 26 of the Transport Act 1985 provides the power for a traffic commissioner to require an operator to notify which vehicles will be used under the licence. The traffic commissioner has discretion to grant a period of grace in respect of each of these requirements.

Section 28 of the Transport Act 1985 provides for the disqualification of a person from holding an operator’s licence and for that disqualification to be varied or cancelled on application to the traffic commissioner. Section 7B of the Public Passenger Vehicles Act 1981 provides that where a traffic commissioner determines that the transport manager is no longer of good repute the traffic commissioner must order the disqualification of that transport manager but section 7C allows the traffic commissioner to cancel or (with the consent of the disqualified person) to vary the order and to specify measures with which the disqualified person must comply before the order can be cancelled or varied.

Regulation 6 of the Public Passenger Vehicles (Community Licences) Regulations 2011 provides that, subject to the provision of relevant information, a person issued with a standard licence authorising international operations is entitled to be issued with a community licence by the competent authority (in this case the traffic commissioners). Regulation 7 provides that where a traffic commissioner determines that the operator has lost their repute, he/she may order the permanent or temporary withdrawal of some or all of the certified copies or the community licence.

1.4 1.4 Case Law

General Approach

Transport businesses work in an increasingly complicated environment, where they are expected to be able to meet and adapt to commercial challenges. In entering a regulated industry, the operator, its officers, and any transport manager accept that they are subject to regulatory requirements. Applicants should therefore make sure that before submitting an application, they have the requisite experience or training to fully appreciate what is required of an operator under the regulatory regime (see 2020/055 URA Ventures Ltd). As the appellate Tribunal has stated on many occasions: trust is one of the foundation stones of operator licensing. Traffic Commissioners must be able to trust operators to comply with all the relevant laws, rules and regulations because it would be a physical and financial impossibility to police every aspect of the licensing system all day and every day. In addition, operators must be able to trust other operators to observe the relevant laws, rules and regulations. If trust between operators breaks down and some operators believe that others are obtaining an unfair commercial advantage by ignoring laws, rules or regulations then standards will inevitably slip and the public will suffer (see 2006/277 Michael James Fenlon t/a County Skips).

That was restated in 2013/082 Arnold Transport & Sons Ltd: The grant of an operator’s licence does not mean that an operator can then proceed on the basis that the requirements that must be met in order to obtain a licence can thereafter be disregarded. In our view it is clear both from the terms of the…Act that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. The use of the expression ‘at any time’ makes the continuing nature of the obligations very clear. Irrespective of whether it is a restricted or standard licence, an applicant must be able to comply with the operator licence requirements. Operators sign up to those obligations and can be taken to be aware and follow the published advice and guidance (see 2012/030 M G M Haulage & Recycling Ltd) which aims to assist them with complying with their legal obligations. The DVSA Guide to Maintaining Roadworthiness summarises the responsibilities and systems involved in keeping vehicles in a roadworthy condition, including the requirements of the Road Vehicles (Construction & Use) Regulations 1986/1078. If they are not, then they may present a risk to public safety.

Fitness is an essential element of an operator’s repute and includes the ability to meet the requirements/undertakings on the operator’s licence. The Upper Tribunal reinforced in the appeal of 2014/024 LA & Z Leonida t/a ETS: it does not matter whether an operator’s licence is held by an owner operator, a partnership or a limited company because in each case the person or persons responsible for managing the business bear the ultimate responsibility for ensuring that the road transport aspect of the business operates in compliance with the regulatory regime. That means that they cannot plead ignorance or put the blame on the transport manager because they are required to have sufficient knowledge of the regulatory regime to ensure compliance in general and the proper performance of the transport manager’s duties in particular”. As with any regulated environment, a duty holder cannot expect to argue ignorance of the operator licence requirements.

In essence, the legal principle of proportionality requires a traffic commissioner when exercising a statutory function, to make decisions which are commensurate with the circumstances of each individual case and the purposes of the legislation (2022/1227 Lineage UK Transport Ltd - The Upper Tribunal rejected the argument that regulatory action constitutes a punishment and would breach the Regulators’ Code.). The Upper Tribunal has stated as follows

There is a difference in the legal framework to be applied as between a refusal to grant an application for an operator’s licence (on the one hand), and a subsequent revocation for loss of repute after a licence has been granted (on the other). At the application stage, the ‘gatekeeper function’ is of importance. Thereafter having granted a licence any regulatory action by the traffic commissioner should not be punishment in itself, but designed to assist in the promotion and achievement of the legislation 2013/046 Shearer Transport Ltd and James Shearer.

The primary factor then to be considered is the impact on road safety and fair competition arising from the alleged breaches of the legislation by the operator. Traffic commissioners must also have regard to the impact upon an operator of any regulatory action which might be taken in cases of non-compliance. Inaccurate submissions may affect the fairness of the process and result in a procedural irregularity 2014/071 W. Martin Oliver Partnership. There is no “‘five-year rule’ relating to previous public inquiries or regulatory action” and a traffic commissioner is therefore entitled to go back as far as they need to in order to determine whether an operator can be trusted to comply in the future 2014/008 Duncan McKee and Mary McKee.

A warning does not constitute a direction within the terms of the legislation and, whilst a direction may not be given without first holding a public inquiry if the holder of the licence requests this, the legislation imposes no requirement to hold a public inquiry before issuing a warning 2008/268 Funstons Ltd. However the significance of a formal warning is that if it is ignored it will become one of the factors to be taken into account at a future public inquiry should there be one. The purpose of a formal warning is to encourage the operator to avoid the need for any future public inquiry 2012/023 JA & VC Fryer Farms.

In the ordinary course of events, a withdrawal of a licence application might be determinative of the matter but where there is evidence to suggest a manipulation of the licensing system, unlawful operation or other conduct which could adversely affect the good repute of the applicant or of those involved with the application, the traffic commissioner has jurisdiction to continue to consider that application 2002/008 Alcaline Ltd. The traffic commissioner is not limited to taking action against those directors (or partners) in place at the date of the public inquiry but can take action against those persons who were in post as directors at the relevant time 2008/688 & 745 David Pritchard and Brian Smith.

A traffic commissioner is not bound to accept the surrender of an operator’s licence. An operator can only be disqualified once an operator’s licence has been revoked, the power to refuse surrender is therefore essential if the worst offenders are to be prevented from avoiding disqualification (2015/010 Cornwall Busways Ltd) .

The grant of an interim licence does not give rise to a legitimate expectation such that a traffic commissioner is prevented from taking subsequent action, particularly if made clear that further intervention remains an option 2006/149 A & C Nowell Ltd.

Traffic commissioners are reminded of the helpful guidance given by the Scottish Court of Session when considering the approach to be adopted regarding potential action against a licence holder.

The underlying purpose for the power provided by Section 26(1) [a discretionary power] can only be stated in very broad terms, namely that it is intended to be used, so far as may be appropriate, to achieve the objectives of the system. The proper question is whether in that context the direction is appropriate in the public interest. The objectives of the system plainly include the operator’s adherence to the various requirements of section 13(5). In the case of prohibition and conviction it is plain that the protection of the public is a very important consideration. > On the other hand, it does not follow that a traffic commissioner is prevented from taking into account, where appropriate, some considerations of a disciplinary nature and doing so in particular for the purpose of deterring the operator or other persons from failing to carry out their responsibilities under the legislation. However, taking such considerations into account would not be for the purpose of punishment per se, but in order to assist in the achievement of the purpose of the legislation. This is in addition to the obvious consideration that a direction may be used to provide direct protection to the public against dangers arising from the failure to comply with the basis on which the licence was granted. Whether or not such disciplinary considerations come into play must depend upon the circumstances of the individual case. > …We disagree with the implication which they drew from the legislation that the licensing authority could not reach a proper determination without distinguishing between fault on the part of the driver and fault on the part of the operator. This appears to suggest that the operator is not responsible when the driver is at fault. It is important, in our view, to observe a clear distinction between questions of responsibility and questions of culpability Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions [1999] SC 86 (on appeal from 1997 J1).

The Burden and Standard of Proof

There is only one civil standard of proof, which applies to all proceedings before the traffic commissioner, namely that the fact in issue more probably occurred, than not. Re D [2008] UKHL 33 and Re B [2008] UKHL 35 The House of Lords has clarified that “the civil standard of proof always means more likely than not. The only higher degree of probability required by law is the criminal standard. But, as Lord Nicholls explained in Re H, some things are inherently more likely than others…cogent evidence is generally required to satisfy a civil tribunal that a person has been fraudulent or behaved in some other reprehensible manner. But the question is always whether the tribunal thinks it more probable than not.” Secretary of State For The Home Department v. Rehman [2001] UKHL 47

Traffic commissioners are reminded that there is a difference in the statutory language between the provisions relating to applications for a new licence and action including: suspension, curtailment or revocation of an existing licence. When making an application, the burden is on the applicant to satisfy the traffic commissioner that the requirements are met but when taking action against an existing licence, the burden is on the traffic commissioner to be satisfied that the requirements are no longer met. 2016/055 Raymond Kyle Heard trading as Kyle’s Executive Travel confirmed that a traffic commissioner, or those acting on behalf of the traffic commissioner, are not required to go through an application point-by-point to identify gaps and tell the applicant how to go about filling them. There is only so much OTC staff can reasonably be expected to do to assist applicants.

There is no requirement to point out that an operator or applicant has failed to supply material as requested. Per 2014/033 Bulk Waste Management Ltd – operators must be able to understand what is required of them and must reply promptly and fully to requests made by the traffic commissioner or any other body entitled to require information from them. However, any request for additional documents should be adequately itemised with a clear reminder of the consequences for failing to comply (2018/009 Enviro Kleen (Scotland) Ltd, 2020/018 Gaskells Midlands Ltd)

Section 26 of the Goods Vehicles (Licensing of Operators) Act 1995 and section 17(2) of the Public Passenger Vehicles Act 1981 both provide that a traffic commissioner may direct that a licence be revoked on the grounds outlined above; and under section 27 of the Goods Vehicles (Licensing of Operators) Act 1995 and section 17(1) of the Public Passenger Vehicles Act 1981 that a traffic commissioner shall direct that a licence be revoked “if at any time it appears” that the licence holder “no longer” meets any of the fundamental requirements (subject to section 13A of the 1995 Act for goods licence and Article 6 Regulations (EC) No 1071/2009 for PSV licences) in contrast to the provisions relating to applications (see the stay decision in Travel Express Ltd – a licence will be at risk and there are consequent public safety issues from the lack of a competent transport manager).

Regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995 allows a traffic commissioner to refuse an application for a PSV licence where s/he finds the application or the applicant’s conduct to be frivolous or unreasonable (see 2013/083 Ahmad Yusuf Kasam trading as Ahmad Kasam & Sons). The Oxford Dictionary definition of frivolous refers to an adjective with the following meaning: “not having any serious purpose or value”; unreasonable is defined as: “not guided by or based on good sense; beyond the limits of acceptability or fairness.”

The legal definition of frivolous was clarified by the Upper Tribunal (see 2016/055 Raymond Kyle Heard trading as Kyle’s Executive Travel) by reference to the Court of Appeal when they said a claim could be frivolous because: “examination of the facts demonstrates a high probability of failure” (see R v Special Adjudicator ex parte Paulino & Edoukou [1995] 10 WLUK 150). Parties to a public inquiry should be aware that it is open to the traffic commissioner to make an order pursuant to section 54 of the 1981 Act for the payment of costs when that party has been responsible for frivolous, vexatious, improper or unreasonable conduct in relation to the inquiry (see Statutory Guidance and Statutory Directions on Small PSV Operations).

For revocation to be possible under the discretionary or mandatory provisions it is the traffic commissioner who must be satisfied of the ground for revocation (see Muck It Ltd and Others v. Secretary of State for Transport (2005) EWCA Civ 1124 on appeal from 2004/314). On the standard of proof, the House of Lords has cited with approval the proposition that “the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it” (see Re Dellow’s Will Trusts [1964] 1 WLR 451 at p455 as approved in Re H and R [1995] UKHL 16 and Re L (1996)(1) FLR116).

Proportionality

An operator’s licence gives rise to limited benefits, which are property for the purposes of human rights law. Deciding on the appropriateness of any action is therefore different from the sentencing exercise carried out by the criminal courts. See the stay decision in Fredrick R Miller Ltd – As part of the deterrent effect action against a licence may cause contractual and commercial difficulties. The viability of the company should be considered in view of the scale of the operation.

Whilst there may be an element of deterrent effect the discounting of penalties or other sentencing practices are discouraged (see 2003/300 Andrews (Sheffield) Ltd). Nor is it a matter of just ensuring consistency with other individual cases (see 2003/327 The Fox (A1) Ltd). The legislation provides no definition of good repute and so, when a traffic commissioner is considering if an individual is of good repute, the traffic commissioner can have regard to any matter, but in considering a company’s repute the traffic commissioner can have regard to all material evidence (see Statutory Guidance and Statutory Directions on Legal Entities and Statutory Guidance and Statutory Directions on Good Repute and Fitness). In practice these may amount to the same considerations.

Where the operator and/or the transport manager has been convicted of a serious offence or incurred a penalty for one of the ‘most serious infringements’ pursuant to Annex IV of Regulations (EC) No 1071/2009 (see Annex B) the traffic commissioner is obliged to consider that conduct in so far as it relates to repute. Further to Article 6(2)(b) of Regulation (EC) No 1071/2009 the European Commission has drawn up a list of serious infringements indicating categories, types and degrees of seriousness, in addition to the most serious infringements. The annexes of Commission Regulation (EU) 2016/403 set out the infringements in table by type with the seriousness which might be attributed to each offence and maximum frequency any number of infringements can be committed in any rolling period (see Annex B below summarising the EU Regulation).

Article 6 of Regulation (EC) 1071/2009 also refers to where the operator and/or transport manager has been convicted of a serious criminal offence or incurred a penalty for a serious infringement of Community rules relating to:

the driving time and rest periods of drivers, working time and the installation and use of recording equipment;
the maximum weights and dimensions of commercial vehicles used in international traffic;
the initial qualification and continuous training of drivers;
the roadworthiness of commercial vehicles, including the compulsory technical inspection of motor vehicles;
access to the market in international road haulage or, as appropriate, access to the market in road passenger transport;
safety in the carriage of dangerous goods by road;
the installation and use of speed-limiting devices in certain categories of vehicle;
driving licences;
admission to the occupation;
animal transport.

The introduction of this legislation introduced a subtle change to the approach to good repute requiring a similarity of approach in reaching decisions on the repute of an operator and the repute of a transport manager (see 2015/049 Matthew Reynolds v Secretary of State for Transport). Consequently, traffic commissioners balance the guidance from the Upper Tribunal and the effect of Article 6 of Regulation (EC) No 1071/2009. With the introduction of The Goods Vehicles (Licensing of Operators) (Amendment) Regulations 2022, Article 6 has been retained and section 13A(2)(b) of the 1995 Act continues to refer to paragraphs 1 to 5 of Schedule 3 (see Statutory Guidance and Statutory Directions on Good Repute and Fitness).

Whereas the Upper Tribunal has previously indicated that the ultimate question is not whether the conduct of an operator is so serious as to amount to a loss of repute but whether it is so serious as to require revocation (put simply; “is the conduct such that the operator ought to be put out of business?”).

Per 2002/217 Bryan Haulage (No.2) – there is no material difference to the approach taken to proportionality in other jurisdictions, see the Upper Tribunal decision in 2013/026 Vince Larkin Ltd by reference to R v SoS for the Home Department, Ex parte Daly [2001] UKHL 26 and Bank Mellat v HM Treasury [2013] UKSC 39. Also see 2016/046 R & M Vehicles Ltd, Graham Holgate and Michael Holgate – once a traffic commissioner had answered the Priority Freight and the Bryan Haulage questions in the way he did, he did not then need to explain why curtailment was not an option as revocation was inevitable.

Article 6 of Regulation (EC) No 1071/2009 requires that the traffic commissioner shall determine whether, due to specific circumstances, the loss of good repute would constitute a disproportionate response in the individual case. Any such finding shall be duly reasoned and justified. If the traffic commissioner finds that the loss of good repute would constitute a disproportionate response, the traffic commissioner may decide that good repute is unaffected. If the traffic commissioner comes to this conclusion the reasons have to be recorded in the national register.

There are some operators who are subject to other regulatory regimes where strict liability (“no fault”) offences or other enforcement action might result. The numbers of incidents involved may be significant, but traffic commissioners are able to distinguish between those offences where there is an intent element and those which are strict liability. What is more important to this jurisdiction is how the operator approaches the management of risk both generally and with regard to the authorised fleet, reflecting Parliament’s intent that the licensing system deliver road safety and fair competition through consistent application of the licence requirements.

The Upper Tribunal has stated two clear principles on the issue of proportionality:

that in order to protect an operator’s rights under Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms there must be a fair balance between the right of the operator to the peaceful enjoyment of the operator licence and the interests which the licensing regime seeks to protect, and
that a fair balance can only be struck by having regard to what the regime is seeking to protect or achieve, the way in which it seeks to do that and the extent to which the operator can put forward relevant matters in the course of any proceedings (see 2011/060 Nolan Transport and Others, by reference to Air Canada v UK [1995] ECHR 15 and Lindsay v Commissioners for Customs & Excise [2002] EWCA Civ 267).

Article 1 of the First Protocol is a qualified right. The operator’s licence is granted on acceptance by the applicant of certain restrictions and requirements. When considering regulatory action traffic commissioners will need to consider a number of factors, which are not limited to the impact on the operator. The decision has the potential to impact on the rights of others, for example:

protection from serious injury or worse under Article 2 (McCann and Others v United Kingdom [1995] ECHR 31, Boso v Italy [2002] ECHR 846, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [2014] ECHR 789, Rajkowska v. Poland [2014] ECHR 681);
where an operator uses a site as an operating centre without authority resulting in potential prejudice to the Article 1, First Protocol and Article 8 (see Huang & Kashmiri v Secretary of State for the Home Department [2007] UKHL 11 – “must always involve the striking of a fair balance between the rights of an individual and the interests of the community which is inherent in the whole of the Convention”) rights of local residents;
the Article 1, First Protocol rights of other operators, where it is said that a commercial advantage has been gained (including the question of fair competition).

As stated above, the licensing regime exists to promote road safety and fair competition. “The jurisdiction of traffic commissioners is ‘preventative’ in nature… traffic commissioners are not required to wait and then react after some serious event has occurred” (see 2013/022 David James Root trading as Orange Coach Travel).“Other operators, with knowledge of the case, might be tempted to look at the circumstances and say to themselves that the operator in question appears to be getting away with it so why should we bother to incur the expenditure of time, trouble and money to run a compliant operation; It only needs one or two operators to adopt this approach to lead to a greater risk that the operator licensing system, which contributes to road safety, being fatally undermined.” See the stay decision in Highland Car Crushers Ltd. A similar approach was adopted in 2013/047 Dundee Plant Company Ltd, 2014/072 Ian Russell Nicholas trading as Wigan Container Services and Secretary of State for Transport.

There may be cases where it is only necessary to set out the conduct in question to make it apparent that an operator ought to be put out of business (see 2012/034 Martin Joseph Formby trading as G&G Transport , 2012/020 A+ Logistics Ltd). All licence holders are required to have available the specified sum (see Statutory Guidance and Statutory Directions on the Finance. In 2012/005 A N D Haulage Ltd the Upper Tribunal avoided criticism of a suspension pending final determination in order to ensure protection for the public) of money. Standard licence holders are required to employ a transport manager. On an application if the applicant fails to meet the statutory requirement of professional competence it will fail to obtain a licence. If there is already a licence and an employee does not meet the requirements of a transport manager, the operator will not meet the continuing requirement to be of professional competence and the traffic commissioner has the power to revoke.

Whilst issues of proportionality come into play in determining whether there has been a loss of repute those principles have limited application in a case where the operator has failed to have a transport manager as required by the legislation (see Anglorom Trans (UK) Ltd v Secretary of State for Transport [2004] EWCA Civ 998 on appeal from 2003/343 , and see Statutory Guidance and Statutory Directions on Transport Managers). However it is open to the holder of a standard licence to request a period of grace (see Statutory Guidance and Statutory Directions on Case Management) and a traffic commissioner should consider the potential impact of not allowing a period of grace.

A traffic commissioner should consider all the relevant negatives and positives when balancing the relevant factors and so should also carry out an assessment of the weight to be given to all the various competing elements. This also applies to consideration of a transport manager’s repute. The Upper Tribunal has imported a preliminary question, namely: how likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime (see 2013/086 Redsky Wholesalers Ltd and 2013/026 Vince Larkin). If the evidence demonstrates that it is unlikely then that will, of course, tend to support a conclusion that the operator ought to be put out of business. If the evidence demonstrates that the operator is very likely to be compliant in the future, then that conclusion may indicate that it is not a case where the operator ought to be put out of business.

Promises are easily made, what matters is whether those promises will be kept: actions speak louder than words. Per 2009/225 Priority Freight Ltd & Paul Williams, limited weight may be attached to untested promises – also see 2013/057 T Henderson Transport Ltd, NT/2013/082 Arnold Transport & Sons Ltd. In (2015/002 Shoretime Limited (later Leigh Rushworth Ltd), the Upper Tribunal concluded that if an individual carried on acting in a way he knew to be illegal, it is difficult to be confident that he would never adopt a similar approach again.

Conditions may be imposed but traffic commissioners may also seek undertakings (2021/2165 Connor Construction Ltd – there is an implicit power to accept undertakings on matters outside of sections 13C(2) to (6) of the 1995 Act, 2021/565 Clayton Francis Jones t/a Street Buses – once the undertaking is given there can be no valid appeal upon the basis that is should not have been required at all) (for example, as to training), which might be added to the licence and weighed into the balancing exercise. Where an operator has clearly failed to act upon previous advice and/or findings a traffic commissioner is under no obligation to allow further undertakings to be complied with (see 2010/076 Premier Beds Ltd).

In cases involving poor maintenance, for example, DVSA may have carried out a recent and/or follow-up inspection before a public inquiry takes place. Findings must be made as at the date of the public inquiry and should take into account the improvements made by the operator and any operator’s good compliance record. Balancing all these matters against the consequences of losing the licence, traffic commissioners have to decide what is proportionate.

Revocation is not disproportionate where, in the absence of any objective justification and excuse, there have been long term, sustained, repetitive deficiencies (see 2009/410 Warstone Motors trading as The Green Bus Service). Although action must be considered as at the date of the decision, that does not mean that the past becomes irrelevant. In many cases the present is simply the culmination of past events (see 2014/059 Randolph Transport Ltd and Catherine Tottenham). There may be cases where revocation is justified even at the first public inquiry, as the operator has already had opportunity to put things right by the date of the hearing (see 2011/041 Tariq Mahmood trading as T.M. Travel).

If there has been no balancing exercise, or if the challenged decision lacks either intelligible or adequate reasoning, or those elements that are regarded as the essential ingredients of a written decision are missing, or if there is an apparent and material error in the commissioner’s understanding of the law or the key facts, then an appellate tribunal will be bound to consider whether it should intervene on the ground that the commissioner’s decision is plainly wrong. But an assertion that a decision is “disproportionate” is often little more than an assertion that the appellant disagrees with the commissioner’s findings of fact, or thinks that the action taken was too severe. This does not, however, mean that an error of law has occurred, or that reason and the law require the tribunal to take a different view (see 2010/071 Eurofast (Europe) Ltd and 2011/035 Professional Transport Ltd).

The Tribunal has emphasised the requirement for rigorous evidential assessment, sufficient fact-finding, the balancing exercise and judicious decision-making and the requirements that the reasons which are adequate to explain why a decision-maker arrived at a decision (2021/2173 ALPS Scaffolding Ltd, NT/2021/326 RJ Rutledge Ltd, 2021/019 Nico 2014 Ltd) in a regulatory matter. These reasons are not necessary just for the operator or applicant affected by the decision but also for the appellate authorities which may be required to review the validity of that decision. For more information on this point, see the decisions in:

The Upper Tribunal has also recognised that traffic commissioners are entitled to draw reasonable inferences from primary facts. See decisions in 2016/026 J Campbell trading as Vision Travel, 2018/010 C Ingram trading as T.I.P Skips, Assicurazioni Generali SpA v. Arab Insurance Group [2002] EWCA Civ 1642, 2021/465 Liliana Manole, NT/2021/523 NI Truck Rentals Ltd.

There may be occasions where there is a need to make an example of the operator so as to send a warning to the industry as a whole (see 2007/459 KDL European Ltd and Kevin Lumsden, 2010/035 Steven Alan Curtis trading as S & A Curtis Transport and Alan Fredrick Curtis, 2015/021 J O’Doherty Haulage Ltd) refers to the corrosive effect on the operator licensing regime). In 2015/039 Firstline International Ltd and William Lambie, the effect of non-revocation on the industry as a whole held to be a relevant consideration. (2019/025 John Stuart Strachan trading as Strachan Haulage). In cases of deception traffic commissioners are entitled to ask: would other operators who have heard of this ruse consider the perpetrator to be of good repute (see 1996/H46 Mark Anthony Browne trading as Brownes Transport Appeal, as approved in 2002/009 George Gollop and Direct Movement Services Ltd).

A statutory undertaking requires that the operator should set up adequate systems and not allow them to run themselves: what is required is constant supervision and monitoring so as to ensure that the systems work (see 1999/L56 Alison Jones trading as Jones Motors as approved 2000/045 Martin Jolly Transport Ltd, 2005/236 Neil Alldritt trading as Maple Motors). The Transport Tribunal expressly dissented from the proposition that a traffic commissioner must invariably set out all the criteria that they have considered, as each case turns on its own facts. Factors such as the wish to protect employees and the setting of priorities might be relevant. However, the undertakings given in order to enjoy the benefits of a licence are explicit (such as in relation to drivers’ hours and tachographs - see Vehicle Inspectorate v Nuttall [1999] UKHL 14).

The applicable requirements are often intended to protect other road users. The operator should take reasonable steps to prevent contraventions. Whilst it would be an overstatement to describe an undertaking as imposing absolute liability (see 2008/413 Al-Le Logistics Ltd and Others) it is part of the operator’s duty to see that the traffic commissioner is informed of the relevant facts. Tachograph offences must always be viewed seriously but also in perspective (see 2008/780 South Lincs Plant Hire & Sales Ltd) to the particular case. In cases of persistent breaches, it will be difficult for an operator to contend that it has complied with its undertaking. An undertaking requires a rigorous regime of checks (see 2001/007 Alcaline UK Ltd). Where there are repeated infringements there is likely to be some degree of recklessness on the part of an operator and it may be difficult for an operator to contend that its systems are either appropriate or reasonable (see 2001/049 Norbert Dentressangle UK Ltd).

Where there have been serious failures in maintenance and/or repeated failures to ensure the roadworthiness of vehicles and/or trailers a traffic commissioner is not required to give an operator more time to put systems in place which should have been effective from the outset of operation. An operator is expected to react to indications of shortcomings, such as repeated test failures or prohibitions, and to address weaknesses in the management of the transport operation (see 2003/194 Smith’s Distribution Ltd).

In certain cases, it may be appropriate to separately consider the position of a company holding a licence from that of its director(s) and/or officers. The correct approach in those circumstances may be to give the operator an opportunity, for instance, to nominate an alternative transport manager or allow the resignation of a particular director or to take alternative action so as to avoid revocation thereby allowing the operator to retain its good repute (see 2003/107 R A Meredith & Son (Nurseries) Ltd and Article 13 Regulation (EC) No 1071/2009).

Whilst revocation results in loss of the property right described above it does not prevent the operator from enjoying similar rights by reapplying for a new licence. In that case the position of a goods operator, who might seek interim authority to continue operating may differ from that of a PSV operator where that opportunity is not available under the legislation. Traffic commissioners might, as the case requires, consider all matters (including disqualification) holistically, in order to avoid a disproportionate outcome.

When considering repute generally traffic commissioners should remind themselves that the opportunity for rehabilitation through the completion of specified measures is only available to transport managers, which allows the decision to be tempered (see 2012/071 Silvertree Transport Ltd). That said, the Upper Tribunal does not appear to place significant weight on this difference when it comes to the issue of suspension of a CPC (see 2014/050 Andrew Harris trading as Harris of Leicester and 2014/059 Randolph Transport Ltd and Catherine Tottenham). A more detailed examination of the case law as it applies to the repute of transport managers is set out in the relevant Statutory Guidance and Statutory Directions on Transport Managers.

Procedure

The traffic commissioner is entitled to determine the structure of a public inquiry and the evidence that is to be called provided that the rules of natural justice are safe guarded (see 2003/094 Dawlish Coaches Ltd and Statutory Guidance and Statutory Directions on Case Management).

If a traffic commissioner intends to take action at public inquiry it is desirable to give a warning or at least indicate the likely options to enable the operator to make representations about the possible effect on the business (see 1997/J37 Galloway Refrigerated Transport Ltd as approved in 2002/167 A Cooper trading as C-Fare Oban). There will be cases where the process of making representations will be assisted by a provisional indication of what the traffic commissioner has in mind. In this situation the traffic commissioner should use a form of words which clearly demonstrates that he or she retains an open mind. The traffic commissioner can then proceed to conduct a balancing exercise following the receipt of representations (see 2002/197 A Mason trading as Mason Haulage).

Traffic commissioners should consider the weight to be attached to the operator’s explanations and give appropriate credit for steps taken to improve compliance systems (see NT/2017/042 Mark Lyons v Driver & Vehicle Agency and Department for Infrastructure). These matters are particularly important when considering the balancing exercise to be undertaken before making a direction under section 26 or 27 of the Act. Traffic commissioners are reminded that more weight may be given to cogent evidence provided by the licence holder intended to show the likely effect of an order that the traffic commissioner is considering and that less weight may be given to mere assertions.

For standard licences where a traffic commissioner reaches a negative decision, including final rejection of an application, the suspension or revocation of an existing licence and a finding against the repute or competency of a transport manager, full reasons must be given (see Article 15 Regulation (EC) No 1071/2009). Traffic commissioners should where necessary explain why a particular direction is more appropriate than another and/or the length of time of that direction. A specified period might assist an operator to focus that operator’s mind and allow further steps to be taken to improve the systems in question (see 2004/036 George Jenkins Transport Ltd). It might be self-evident that financial consequences will follow from a direction. Good practice indicates that evidence and submissions on consequences should be invited before an order is made (see 2002/167 A Cooper trading as C-Fare Oban).

An attempt to ascertain the likely consequences of action will not give rise to a legitimate expectation as to the outcome as until all evidence and submissions have been considered and there has been time for reflection a traffic commissioner will have an open mind (see 2011/035 Professional Transport Ltd and 1997/J37 Galloway Refrigerated Transport Ltd). The question of the likely effect upon the operator should be properly examined and advocates are expected to assist in this exercise. The actuarial evidence should be specific, comprehensive and compelling. It is for the operator to submit evidence of the financial impact of any action which might be taken (see 2013/047 Dundee Plant Hire Ltd, 2015/021 J O’Doherty Haulage Ltd, 2016/039 Daren Michael Smith trading as DMS Scaffolding).

A traffic commissioner will be unable to consider new material, which could have been obtained with reasonable diligence in advance of the hearing, at a later date (see 2002/040 Thames Materials Ltd). The traffic commissioner might also take a view on when a particular direction might be implemented (see 2003/287 Malco Freight Ltd). A decision not to disqualify might also be used to indicate credit for any positive features identified (see 2010/073 Paul Anthony Faulkner).

On findings that an operator has failed to meet the standards required it is proportionate for a traffic commissioner to refuse a variation application until such time as the traffic commissioner can be satisfied that everything is functioning properly and to request further checks on any assurances given at public inquiry (see 2003/287 Malco Freight Ltd).

Rehabilitation and Disqualification

The above case law must be interpreted so as to give effect to paragraph 16 of Schedule 3 of the 1995 Act and Article 14 of Regulation (EC) No 1071/2009. Paragraph 16 of Schedule 3 of the 1995 Act and Article 14 provide that where a traffic commissioner finds that a transport manager has lost his or her repute the traffic commissioner is obliged to declare that transport manager unfit, to manage the transport activities of any transport operation. That transport manager’s Certificate of Professional Competence (CPC) will no longer be valid unless and until a specified rehabilitation measure has been completed.

That may be a specific period of disqualification or, for instance, the obtaining of a new Certificate of Professional Competence (see 2012/071 Silvertree Transport Ltd). As indicated above paragraph 17 of Schedule 3 of the Goods Vehicles (Licensing of Operators) Act 1995 and Section 7C of the Public Passenger Vehicles Act 1981 allow the traffic commissioner to cancel or (with the consent of the disqualified person) to vary the order and to specify measures with which the disqualified person must comply before the order can be cancelled or varied. There is no case law relating to rehabilitation beyond the general guidance which might be drawn from those cases relating to disqualification.

An order for disqualification can only be made against the operator or a director/equivalent of the corporate body (but not for instance a company secretary – see 2002/094 Brian Kenneth Gover and BKG Transport Ltd) or a transport manager (under different provisions). Disqualification of an operator cannot be imposed without an order for revocation (see 2009/498 G Sunderland and J Warburton) and can be made following revocation of an interim licence (see 2012/013 Russet Red Ltd) but an order for disqualification does not necessarily follow revocation. Disqualification is a potentially significant infringement of rights (see 2000/006 A J Cassels) and the Upper Tribunal has indicated that whilst there is no ‘additional feature’ required to order disqualification it is not a direction which should be routinely ordered (see 2002/030 Steven Lloyd trading as London Skips).

There may be cases in which the seriousness of the operator’s conduct is such that a traffic commissioner may properly consider that both revocation and disqualification are necessary for the purposes of enforcing the legislation (see 2001/074 Brian Edward Clark applying 2000/005 Marilyn Williams trading as Cled Williams Coaches and 2000/018 Euroline Transport Ltd). The provisions are in general terms, consistent with the concept of deterrence, but assessment of culpability and use of words such as penalty should be avoided.

The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified (see 2009/011 Katherine Oliver and J W Swan & Partners, Catch22Bus Limited, Philip Higgs v The Secretary of State for Transport [2019] EWCA Civ 1022). A clear example of this is when an operator fails to attend a public inquiry after an application to adjourn the hearing has been refused (see 2014/084 Timothy Robinson trading as Robinsons’ Removals & Stuart Robinson).

In certain circumstances a traffic commissioner may order under section 28(4) that an individual is not only disqualified from holding or obtaining an operator’s licence but also from being involved in management, administration or control of the transport operations of an entity that holds or obtain such a Licence in Great Britain (see 2015/078 Black Velvet Travel Ltd, Western Greyhound Ltd and Michael John Bishop). The Upper Tribunal had regard to a decision of the Transport Tribunal and in particular that a traffic commissioner must:

ensure that the purpose of an order is not undermined or defeated by a disqualified person becoming involved with the management of another operator’s licence (see 2005/457 Leslie John Ings trading as Ings Transport.

This will be even more important where a traffic commissioner is concerned regarding the risk of “fronting” (see Statutory Guidance and Statutory Directions on Good Repute and Fitness and 2012/071 Silvertree Transport Ltd).

Additionally, a traffic commissioner may accept undertakings from applicants that named individuals will not be employed or have any involvement with the business in any capacity, especially where there are concerns of “fronting” (2020/012 Michael Hazell).

Section 28(1) of the Goods Vehicles (Licensing of Operators) Act 1995 permits disqualification to be ordered either indefinitely or for such period as the traffic commissioner thinks fit (2020/41 Bunny Transport Ltd and Carol Grayling). The periods are expressed to be in the alternative, with there being no power to impose a minimum period as section 28(6) expressly empowers traffic commissioners to cancel an order for disqualification at any time (see 2001/006 M-Line Ltd).

Traffic commissioners are reminded that consideration of the period of any order for disqualification will always turn upon the facts of the individual case. The guidance from the Upper Tribunal reflects this (see 2014/040&41 C G Cargo Ltd and Sukhwiunder Singh Sandhu).

It is only on those rare occasions on which the facts are exactly the same that another decision is likely to be of any assistance on the question of the appropriate length of disqualification (see 2012/044 Highland Car Crushers Ltd, 2012/56 & 57 Deep Transport Ltd and Midland Transport Ltd).

It is clear that each case must be considered on its own merits (see 2009/011 Katherine Oliver and J W Swan & Partners, paragraph 12) and relies on the traffic commissioner to assess what is necessary to balance the objectives of the legislation including the protection of the public and ensuring fairness to the legitimate licensed transport industry against the potentially significant infringement of the licence holder’s or individual’s rights.

When imposing a disqualification, there should be an assessment of the evidence (2021/046 James Reilly) and submissions as to the effect of any order in setting the appropriate length of the order (see 2005/426 Kuldev Singh Oakhal trading as Premier Transport Services and 2019/047 Clarks Caravans and Others). Per 2018/072 St Mickalos Company Ltd and Michael Timinis, 2019/055 Samra Foodservice Ltd and Hardev Singh Samara, the Upper Tribunal advised advocates:

that if they fail to address a TC upon the issue of disqualification and are not then invited to do so by a TC and if that failure is either the only or main ground of appeal before the Tribunal, then whoever represents the operator on appeal, must be prepared to make the necessary submissions as to the effect and length of disqualification before the Tribunal bearing in mind our jurisdiction to substitute our own decision for that of the TC in appropriate cases pursuant to paragraph 17(2)(a) of Schedule 4 of the Transport Act 1985 (2019/072 Cavendish School of English Ltd and Marcus Barber, 2020/017 Roger Llewellyn, 2021/025 MBBStrans Ltd).

The Upper Tribunal has reaffirmed the traffic commissioner’s decision to disqualify without hearing submissions on disqualification or its length when there was no further factual evidence to be presented. (see 2019/047 & 051 Keith Bute, Clarks Caravan & Boat Haulage Ltd and Others, in 2019/072 Cavendish School of English Ltd and Marcus Barber the Upper Tribunal remitted the case for re-hearing solely on the issue of disqualification due to the pertinence of information which could have been disclosed had disqualification been raised in the traffic commissioner’s assessment as to the proportionality of disqualification)

Once the period of time is determined traffic commissioners are reminded of the need to set out the relevant findings of fact, the analysis of the relevant actions of those concerned and the appropriate balancing exercise, so that the licence holder is aware of the material used to justify disqualification (see 2004/373 Rai Transport (Midlands) Ltd and Amardip & Daljit Singh Rai, 2013/042 Project Movements Ltd, 2016/050 Lorraine Baldwin.

Good practice dictates that if the decision is issued orally that written confirmation of the oral decision is sent to those the subject of the disqualification but it is likely that the majority of orders for disqualification will be encompassed in the traffic commissioner’s full written reasons accompanying the order for revocation. In some cases it may be appropriate, having indicated a view on the evidence, to seek written representations at the end of a hearing before deciding on whether disqualification (and the period) is appropriate (see 2005/367 K Jaggard).

Where a former licence holder or individual applies to vary or cancel an order for disqualification the burden lies with the applicant and the test is what is appropriate in the public interest, and the traffic commissioner will need to consider all relevant aspects. Each case turns on its own facts. Protection of the public (see 2007/061 Richard Derek Land) is just one of several factors to be taken into account when deciding what is necessary (see 2008/593 Martin John Graves).

Active Case Management

The Senior Traffic Commissioner considers that by following these principles in hearings traffic commissioners will be able to actively manage the case whilst ensuring that cases are dealt with justly, so far as is practicable by:

(a) ensuring that all evidence is served by the Office of the Traffic Commissioner in a timely manner;

(b) ensuring that any written evidence and representations from the operator and/or its representative is provided to the presiding traffic commissioner sufficiently in advance of the hearing so that it can be read and considered by the commissioner in advance;

(c) ensuring that operators provide the documents requested by the Office of the Traffic Commissioner in advance of the public inquiry where requested to do so;

(d) identifying the issues for determination by the traffic commissioner at an early stage;

(e) ensuring value for money in the use of time and resources (including considering the need to call witnesses whose evidence may be agreed);

(f) dealing with the case in ways which are proportionate to –

the size and type of licence/s involved
the nature and scale of the breaches
the complexity of the issues
the likely orders and directions to be made
the likely effect upon the operator of the proposed orders and directions; and

(g) ensuring that the public inquiry is listed expeditiously and that an appropriate time estimate is allocated (see Statutory Guidance and Statutory Directions on Case Management).

Communicating the Decision

The letter communicating the traffic commissioner’s decision to revoke should, as a matter of natural justice, include reasons for the decision or refer to a document containing the written reasons or a written decision (see2009/204 Michael John Verrechia and Statutory Guidance on Written Reasons, Decisions and Publication and Article 15 of Regulation (EC) No 1071/2009 regarding standard licences).

Question 2

2. 2. Directions

Accepted Answer

The Senior Traffic Commissioner for Great Britain issues the following Directions to traffic commissioners under section 4C(1) of the 1981 Act (as amended) and by reference to section 1(2) of the Goods Vehicles (Licensing of Operators) Act 1995. These Directions are addressed to the traffic commissioners in respect of the approach to be taken by staff acting on behalf of individual traffic commissioners and dictate the operation of delegated functions in relation to the principles of decision making and the concept of proportionality.

2.1 2.1 Basis of Directions

The criminal courts are concerned with punishing those who have committed criminal offences, whereas traffic commissioners are concerned with promoting the objectives of the relevant legislation in seeking to ensure that operators who can and will comply retain their licences whilst ensuring that operators who cannot or will not comply do not retain their licences. Consequently, questions of what action is proportionate will vary in each individual case.

It has also long been the case that members of the Office of the Traffic Commissioners have prepared detailed submissions to the traffic commissioners about operators and whether to grant applications (outside permitted delegations – see Statutory Guidance on Delegations) or whether to convene public inquiries. Recognised senior staff members have extensive knowledge of the regulatory framework, the legislation and the issues that concern traffic commissioners. Submissions need to be accurate and include an analysis of any supporting documentation with appropriate action recommended, which is consistent with the Statutory Guidance and Statutory Directions (see Statutory Guidance and Statutory Directions on Case Management).

Even the most organised operator may occasionally make a genuine mistake and, unless this is serious, formal action may not be required. It is expected, however, that an operator will learn from an incident and take prompt corrective action. A more serious view will be taken of repeated failings or a combination of apparent infringements.

If the measures imposed at an earlier public inquiry appear to have been effective and/or the relevant suspension or curtailment has expired, it will not normally be appropriate to call a further public inquiry if the operator applies for the licence to be restored to the previous authorisation, or even further increased after an appropriate period, provided that the traffic commissioner is satisfied that standards have been restored and maintained. If appropriate, DVSA will be asked to carry out checks to establish suitability. A case submission should be made to the traffic commissioner to this effect.

Allegations or matters of fact relating to the potential exercise of powers under section 17 of the Public Passenger Vehicles Act 1981, the Road Traffic Act 1988, and/or sections 26 and 27 of the Goods Vehicles (Licensing of Operators) Act 1995 will need to be considered by the traffic commissioner and reference should be made to the relevant Statutory Guidance and Statutory Directions.

Members of staff should anticipate, when preparing written submissions, that the traffic commissioner will wish to consider formal regulatory action where:

protection from serious injury or worse is required under Article 2;
the operator and/or driver does not appear to heed a warning and non- compliance continues; or
the initial report is so serious that a public inquiry is immediately justified by an apparent risk to road safety, fair competition or where the operator appears to have set out to flout the law deliberately.

At any stage, either prior to a decision being made whether to call an operator or applicant to a hearing or during the hearing, further undertakings can be offered in which the operator or applicant legally promises to do something in order to satisfy the traffic commissioner that a statutory requirement will be met. Operators occasionally offer an undertaking to carry out a full systems audit to test the robustness of new systems put in place.

Staff on behalf of the traffic commissioner will usually supply a pro-forma detailing the headings which should be covered in an audit (as a minimum) to ensure sufficient detail. While traffic commissioners cannot recommend or endorse a particular auditor (2019/071 Alan John Woolley t/a Dolphin Travel), operators will need to ensure that the quality of the audit is of a high enough standard (by way of a starting point DVSA publish a list of approved auditors as part of their earned recognition scheme).

2.2 2.2 Alternative Disposals to a Public Inquiry

As the case law makes clear there is no requirement on traffic commissioners to engage in discussions with applicants and/or operators before reaching a preliminary decision on whether to call to a hearing. Operators are usually provided with an opportunity to comment in response to the findings of a DVSA investigation. It may, however, be appropriate to request further comments on the first occasion when operators are found to have incurred a small number of prohibitions; minor failings in their maintenance system; a small number of tachograph errors; vehicle excise duty offences; minor convictions and any other offences not proceeded with.

In these cases, a letter can be sent to the operator requesting an explanation within a given timetable as to the reasons for the shortcomings and the steps being taken to overcome them, and to seek further assurances. In the event of convictions, the operator will be asked to confirm whether any further offences are outstanding. A satisfactory reply might result in a recommendation for an alternative disposal to a public inquiry.

The public inquiry process has been shown to be effective in ensuring compliance by inviting operators to attend before the traffic commissioner to explain their actions and outline how alleged failures occurred in the first instance. This can enable the traffic commissioner to hear details of the remedial action being taken and to seek and receive assurances as to future compliance. It also enables a proper assessment to be made of the fitness of the individual witness. The Upper Tribunal (and its predecessor) has repeatedly emphasised the value of the presiding traffic commissioner meeting the operator/witness and hearing the evidence first-hand. The Senior Traffic Commissioner is clear that those benefits should be maintained.

The public inquiry process is intended to deliver a swift method of ensuring operator licence compliance as reflected in the statutory notice periods: 21 days for goods operators and 14 days for PSV operators. However, pressure on limited tribunal resources may delay the hearing of cases. As the tools and mechanisms available to the enforcement agencies (particularly DVSA) have become ever more sophisticated and as those agencies become better at targeting those operators and drivers who pose the greatest risk to road safety and fair competition, it is appropriate to target the traffic commissioners’ tribunal resources at those same operators and drivers and to divert the less serious cases away from the formal public inquiry process.

The decision as to whether to convene a public inquiry or to find an alternative method of disposal always remains with the traffic commissioner, but the Senior Traffic Commissioner encourages the use of alternative disposals for cases which may not require serious intervention and where compliance might be achieved without convening a public inquiry.

There are a number of options available to the traffic commissioner when considering whether to deal with non-compliant operators without convening a formal public inquiry:

an established method is to issue warning letters to operators (and in certain cases their drivers). There is limited evidence that this results in sustained compliance;
in suitable cases, where it is considered that compliance might be achieved without convening a public inquiry, a senior staff member (not below the grade of senior team leader) may recommend, by way of submission, that the operator attend a meeting with that senior team leader at the Office of the Traffic Commissioner;
in more complex or borderline cases where a public inquiry may be necessary, the traffic commissioner may decide to call an operator to a formal preliminary hearing. This can be beneficial in narrowing or crystallising the issues or assurances as to future compliance or, alternatively, might result in the traffic commissioner concluding that they can deal with the matter by some other method.

When one or more warning letters have been issued in the past five years, it is anticipated that the traffic commissioner will wish to consider regulatory action. The traffic commissioner, however, might also consider a ‘final’ warning letter. In appropriate cases the traffic commissioner may request DVSA to carry out a routine check to ensure compliance.

The purpose of a meeting with a senior member of staff is to allow the operator to explain themselves and how any failures occurred. The meeting allows opportunity to hear details of any remedial action being taken and to seek and receive assurances as to future compliance. It also enables the senior member of staff to make an assessment of the operator’s approach to future compliance.

The procedure for determining the types of cases that are suitable for a meeting with the senior team leader is at Annex E. The senior member of staff has no authority to act outside the direction of the traffic commissioner, (as provided for in the protocol). In the event that the operator fails, without good reason, to respond to the meeting invitation, the senior member of staff must refer the case back to the traffic commissioner forthwith, with a recommendation that the operator be called to public inquiry.

In more borderline cases where a public inquiry looks to be required, a traffic commissioner may decide to call an operator to a preliminary hearing in order to determine whether that public inquiry is necessary and therefore whether the matter can be dealt with by another method. Many cases appear to be serious and warrant a public inquiry on the papers yet when the operator provides a full explanation and accompanying supporting documents the traffic commissioner can determine the matter without use of their regulatory powers.

The same principles that apply to the convening of public inquiries and meetings with the senior team leader apply to the convening of preliminary hearings. The appearance of the operator before the traffic commissioner enables the operator to explain their actions and how the failures happened in the first instance, to allow the traffic commissioner to hear details of the remedial action being taken and to seek and receive assurances as to future compliance. A preliminary hearing also enables the presiding traffic commissioner to make an assessment of the operator and any witness at the hearing. The advantage of the preliminary hearing is that it can be listed more quickly than a full public inquiry and it makes good use of the traffic commissioner’s time in determining whether a public inquiry is really necessary.

The type and number of cases (together with the outcome) that are dealt with by way of a preliminary hearing or a meeting with a senior member of staff will be recorded in the same way as public inquiries and statistics will be kept for inclusion in the traffic commissioners’ annual reports.

2.3 2.3 The Public Inquiry

As indicated above, the value of hearing all of the relevant evidence and submissions at public inquiry is long established and traffic commissioners will be careful to ensure that each case is dealt with on its own facts. Traffic commissioners will note that a case that may appear to be very serious from an initial reading of the brief can in fact turn out not to require severe regulatory action once all the evidence and submissions has been heard and conversely that a case that initially appears not to be serious can then in fact require severe regulatory action.

To ensure a consistency of approach at the hearing of the public inquiry itself Annex C sets out some suggested starting points. It does not deal with when a matter might be called to a hearing. However, the presiding traffic commissioner retains absolute discretion to move up or down from the suggested starting points as and when the particular facts and circumstances of a case justify it. There are many variables in the types of case before a traffic commissioner. Annex C refers to the most common occurring concerns. Traffic commissioners will take into account any other concerns that are raised and take whatever action appears to be appropriate in the individual circumstances.

Annex C considers common areas of negative conduct experienced and the positive factors relevant when considering the conduct of operators. The tables contain lists which are neither exhaustive nor prescriptive. Each case must turn on its facts.

The term “infringement” has been deliberately adopted although this is not a punitive exercise. Any breach of relevant rules, regulations or legislation that is admitted, or determined on the balance of probabilities, is regarded as an infringement regardless of whether or not the subject matter in question has been prosecuted and/or a penalty imposed.

The type of regulatory action that an operator might receive has been categorised under four broad headings to encapsulate the most serious types of regulatory action down to the least serious, with a degree of overlap between each category. Each category details the various types of regulatory action that might be considered as proportionate and appropriate to a particular case. Having balanced the evidence heard at a public inquiry, and the negative and positive features that are present, a traffic commissioner should be able to arrive at a starting point within one of the four broad categories of regulatory action.

2.4 2.4 The Role of the Public Inquiry Clerk

The role of a public inquiry clerk (caseworker) is to provide administrative support to the traffic commissioner to allow him/her to carry out their statutory duties in relation to public inquiries and/or driver conduct hearings. They are not responsible for identifying which operators/applicants should be called to public inquiries nor are they responsible for the decisions taken at public inquiries but will assist the traffic commissioner with general enquiries. If a caseworker is in any doubt as to the traffic commissioner’s intentions, they should make the appropriate enquiries of the traffic commissioner.

2.5 2.5 Mandatory requirements

Operators who are called to public inquiry will be required to produce evidence which can demonstrate that they continue to meet the requirement to be of appropriate financial standing or, in the case of restricted goods licences to have sufficient financial resources. This is because it has frequently been found that other shortcomings are caused by lack of adequate finance. The evidential basis for this request should always be stated in the letter calling an operator to a public inquiry (see Statutory Guidance and Statutory Directions on Finance).

Holders of standard goods and PSV licences and transport managers are required to be of good repute. Holders of all standard licences are required to be professionally competent. This may be the licence holder or the licence holder may employ a transport manager who can demonstrate that he or she meets the professional competence requirement (see Statutory Guidance and Statutory Directions on Transport Managers).

When considering whether the mandatory requirements are met the traffic commissioner may only make an adverse finding if there is sufficient evidence to satisfy him or her on the balance of probabilities (whether a fact is more likely than not). For instance, evidence might suggest that the nominated transport manager has not been exercising continuous and effective responsibility or there is information to suggest that the transport manager may not be capable of exercising this level of control. In those circumstances the traffic commissioner may need to consider whether the relevant acts or omissions call in to question the repute of the transport manager (see Statutory Guidance and Statutory Directions on Good Repute and Fitness).

For standard licences section 27 of the 1995 Act and Regulation (EC) No 1071/2009 (at Annex A) allows but does not require the traffic commissioner to provide a period to rectify the situation. The operator must be notified and should be given a limited time (because of the implications for fair competition), for instance 14 days, to make written representations before the traffic commissioner decides whether to allow time for rectification and for what period.

The maximum allowable period of grace following the departure of a transport manager is 6 months. The maximum allowable period of grace following the death or physical incapacity of a transport manager is 6 months, rising to 9 months.

The maximum allowable period of grace for an effective and stable establishment is 6 months. The maximum allowable period of grace for financial standing is 6 months to demonstrate that the requirement will be met on a permanent basis.

A failure to appoint a replacement transport manager after a period of grace or to communicate with the traffic commissioner can amount to serious misconduct on the part of the operator. When a period of grace is granted to an operator, they are responsible for ensuring that they demonstrate the requirement is met prior to the expiry of any period of grace. An operator should therefore actively manage any dates and request an extension, when appropriate, whilst remembering that the grant and any extension is always at the discretion of the traffic commissioner (see 2018/011 Skyrider Ltd). If a period of grace expires without the mandatory requirement being met then the traffic commissioner is obliged to revoke the operator licence.

2.6 2.6 Action to be Considered at Public Inquiries

In deciding what action is proportionate traffic commissioners will wish to carry out a balancing exercise. Invariably, this involves consideration of the seriousness of any breaches which the traffic commissioner has found to have occurred and what has been done to remedy those transgressions (and when such action was taken), with reference being made to the size of the fleet and its history. As the operator was trusted to ensure compliance from the date of grant promises of future action will carry less weight. It is neither practical nor desirable to lay down fixed criteria because every case will be different, but the following paragraphs represent a guideline.

The revocation of standard operator licences is mandatory if the holder is found to no longer be of good repute, of appropriate financial standing or professionally competent, subject to a period of grace which might apply in respect of financial standing or professional competence. Failures to meet the requirements of the operator’s licence may place the repute of the operator and/or the transport manager at issue. The principles set out in the attached Statutory Guidance will then apply.

A direction suspending a licence should set out the expiry date or action required in order to lift the suspension. In curtailing a goods operator’s licence, a traffic commissioner might set an expiry date or set out the action required, in order to lift the curtailment. However, a traffic commissioner is not obliged to set a time limit for the curtailment. A traffic commissioner can vary that direction or require a variation application, as part of the deterrent. A member of staff will record a case note on the Vehicle Operating Licensing system that explains an operator is subject to a permanent curtailment.

2.7 2.7 New operators

Notwithstanding the above, new operators are more likely to be called to a public inquiry if, during their first year, there are grounds to suggest (possibly from a DVSA new operator check) that the systems required and the operator has recently undertaken to implement, are not functioning as required by the licence or the operator is not committed to ensuring compliance. In giving these Statutory Directions the Senior Traffic Commissioner is mindful of the principles outlined in [the Regulators’ Code].

A public inquiry or preliminary hearing may provide an important educational as well as regulatory opportunity, particularly for restricted licence holders, who are not required to employ anyone of professional competence. Where allegations, however, of non-compliance appear to have impacted on road safety such as the issue of an immediate ‘S’ endorsed prohibition of a vehicle or tachograph records have not been produced, it is more likely that the traffic commissioner will wish to consider taking action against that licence.

2.8 2.8 Multiple Licence Holders and the Lead Traffic Commissioner

The legislation enables an operator’s licence to be subject to revocation, suspension or curtailment (or in the case of PSV operators, a reduction in the number of authorised vehicles). It is for the traffic commissioner who hears the case to decide, with regard to the nature and circumstances of each case, what action is appropriate. A multiple licence holder may face regulatory action against one or more of its operator licences, and any determination which is made may only relate to those operators’ licences which fall to be considered by the traffic commissioner (see Statutory Guidance on Delegations and Multiple Licence Holders).

2.9 2.9 Disqualification

Section 28 of the Transport Act 1985 and section 28 of the Goods Vehicles (Licensing of Operators) Act 1995 enables the disqualification of a person from holding an operator’s licence and for that order to be varied or cancelled. In the event of the revocation of an operator’s licence a commissioner will wish to consider disqualification of the licence holder and any director of a company or partner (as appropriate). Careful consideration of disqualification and of its effects upon the licence holder and any linked licence holders is required and Section 28 of the Goods Vehicles (Licensing of Operators) Act 1995 and section 28 of the Transport Act 1985 are set out at Annex F. It is important to note that any disqualified person will be subject to subsection (4). The effect of this is that if that person is either a director of or holds a controlling interest (see Statutory Guidance on Persons of Significant Control in Legal Entities) in another company which holds an operator’s licence, that licence shall be liable to regulatory action under section 26.

The amendments to paragraph 17 of Schedule 3 of the 1995 Act provide for a minimum period of one year disqualification of a transport manager after ceasing to be of good repute, beginning with the day on which the order was made, before any disqualification order may be cancelled. Beyond that, when considering disqualification, traffic commissioners should take account of the general legal principle that each case must be looked at on its merits. A tariff system is not appropriate, however, traffic commissioners should use the following as starting points:

for a transport manager, a minimum period of one year;
for an operator’s first public inquiry, consideration of a disqualification period of between 1 and 3 years 2022/1142 Nirwan Ltd and Daljeet Singh Nirwan;
serious cases (see Annex D) where, for example, there are persistent operator licence failures with inadequate response or previous public inquiry history, this may merit disqualification of between 5 to 10 years;
severe cases (see Annex D) where, for example, the operator deliberately puts life at risk and/or knowingly operates unsafe vehicles or allows drivers to falsify records, may merit disqualification for an indefinite period.

In all cases, the traffic commissioner should provide cogent reasons for the length of disqualification imposed or varied. It is always open to a disqualified person to make an application to vary or cancel an order. Unless there are exceptional circumstances, a disqualification of less than two years will not normally be reduced, and disqualification for longer or indefinite periods will not normally be reviewed until half the period or 5 years of the disqualification have elapsed as applies.

There are different provisions relating to the disqualification of a transport manager. Where a transport manager has been disqualified it will be necessary to notify all operators who rely on that transport manager to meet the requirement for professional competence in order to allow that operator to nominate a new CPC holder and/or to request a period of grace in order to obtain a replacement transport manager. It is good practice to notify the related operator of the reasons for the traffic commissioner’s decision.

2.10 2.10 Rehabilitation

Great Britain has not enacted the provisions of Article 6.3 of Regulation (EC) No 1071/2009 into national law and there is therefore no power for traffic commissioners to order an operator to undertake rehabilitation measures in order to regain their good repute. They can, as indicated above, order measures to be taken by a disqualified transport manager, for instance re-taking and passing the examinations to obtain a Certificate of Professional Competence. However, there is nothing to prevent the presiding traffic commissioner from giving an indication to an operator who has lost its repute of the steps that may be taken in the future to regain that repute.

2.11 2.11 Decisions

After giving due consideration to the evidence and any submissions, the decision of a traffic commissioner may either be communicated to the operator/applicant orally at the end of the inquiry or be reserved, with the decision being notified in writing at a later date (see Statutory Guidance and Statutory Directions on Written Reasons, Decisions and Publication).

All letters notifying operators/applicants of decisions should provide details of the decision or refer to an attached document and advice on actions to be taken by an operator/applicant and contain information about rights of appeal. Other relevant parties at the inquiry should receive notification of the decision. The decision must also be published in the Notices and Proceedings or Applications and Decisions in accordance with legislative requirements.

Question 3

3. 3. Annex A - Retained EU Legislation

Accepted Answer

Regulation 5 of the Road Transport Operator Regulations 2011 states that a standard licence constitutes an authorisation to engage in the occupation of road transport operator for the purposes of:

Regulation (EC) No 1071/2009 establishing common rules concerning conditions to be complied with to pursue the occupation of road transport operator repealed Council Directive 96/26 EC and applicable from 4th December 2011.

3.1 3.1 Article 3 - Requirements for engagement in the occupation of road transport operator

1 . Undertakings engaged in the occupation of road transport operator shall:

(a) have an effective and stable establishment in a Member State;

(b) be of good repute;

(c) have appropriate financial standing; and

(d) have the requisite professional competence.

3.2 3.2 Article 6 - Conditions relating to the requirement of good repute

1 . Subject to paragraph 2 of this Article, the Minister must determine the conditions to be met by undertakings and transport managers in order to satisfy the requirement of good repute laid down in Article 3(1)(b).

In determining whether an undertaking has satisfied that requirement, the competent authority may consider the conduct of the undertaking, its transport managers and any other relevant person as maybe determined by the competent authority. Any reference in this Article to convictions, penalties or infringements shall include convictions, penalties or infringements of the undertaking itself, its transport managers and any other relevant person as may be determined by the competent authority.

The conditions referred to in the first subparagraph shall include at least the following:

(a) that there be no compelling grounds for doubting the good repute of the transport manager or the transport undertaking, such as convictions or penalties for any serious infringement of national rules in force in the fields of:

commercial law;
insolvency law;
pay and employment conditions in the profession;
road traffic;
professional liability;
trafficking in human beings or drugs; and

(b) that the transport manager or the transport undertaking have not been convicted of a serious criminal offence or incurred a penalty for a serious infringement relating in particular to:

the driving time and rest periods of drivers, working time and the installation and use of recording equipment;
the maximum weights and dimensions of commercial vehicles used in international traffic;
the initial qualification and continuous training of drivers;
the roadworthiness of commercial vehicles, including the compulsory technical inspection of motor vehicles;
access to the market in international road haulage or, as appropriate, access to the market in road passenger transport;
safety in the carriage of dangerous goods by road;
the installation and use of speed-limiting devices in certain categories of vehicle;
driving licences;
admission to the occupation;
animal transport.

2 . For the purposes of point (b) of the third subparagraph of paragraph 1:

(a) where the transport manager or the transport undertaking has in the United Kingdom or in one or more Member States been convicted of a serious criminal offence or incurred a penalty for one of the most serious infringements of Community rules as set out in Annex 4, the competent authority must carry out in an appropriate and timely manner a duly completed administrative procedure, which shall include, if appropriate, a check at the premises of the undertaking concerned.

The procedure shall determine whether, due to specific circumstances, the loss of good repute would constitute a disproportionate response in the individual case. Any such finding shall be duly reasoned and justified.

If the competent authority finds that the loss of good repute would constitute a disproportionate response, it may decide that good repute is unaffected. In such case, the reasons shall be recorded in the national register. The number of such decisions shall be indicated in the rannual reports which the traffic commissioners make under section 55 of the Public Passenger Vehicles Act 1981.

If the competent authority does not find that the loss of good repute would constitute a disproportionate response, the conviction or penalty shall lead to the loss of good repute.

(b) the competent authorities must take into account any information on the categories, types and degrees of seriousness of any infringements referred to in Annex IV and Commission Regulation (EU) 2016/403, including information received from Member States, when setting the priorities for checks pursuant to Article 12(1). Additional measures, designed to amend non-essential elements of this Regulation by supplementing it and which relate to this list, may be adopted by the Minister.

To this end, the Minister may by regulations:

(i) lay down the categories and types of infringement which are most frequently encountered;

(ii) define the degree of seriousness of infringements according to their potential to create a risk of fatalities or serious injuries; and

(iii) provide the frequency of occurrence beyond which repeated infringements shall be regarded as more serious, by taking into account the number of drivers used for the transport activities managed by the transport manager.

3 . The requirement laid down in Article 3(1)(b) shall not be satisfied until a rehabilitation measure or any other measure having an equivalent effect has been taken pursuant to the relevant provisions of national law.

Regulations under this Article may—

(a) include supplementary, incidental, consequential, transitional, transitory or saving provision: and

(b) make different provision for different cases.

Question 4

4. 4. Annex B - Infringements

Accepted Answer

4.1 4.1 Regulation (EC) No 1071/2009 – Annex IV

Most serious infringements for the purposes of Article 6(2)(a)

(a) Exceeding the maximum 6-day or fortnightly driving time limits by margins of 25% or more. (b) Exceeding, during a daily working period, the maximum daily driving time limit by a margin of 50% or more without taking a break or without an uninterrupted rest period of at least 4.5 hours.
Not having a tachograph and/or speed limiter, or using a fraudulent device able to modify the records of the recording equipment and/or the speed limiter or falsifying record sheets or data downloaded from the tachograph and/or the driver card.
Driving without a valid roadworthiness certificate if such a document is required under Community law and/or driving with a very serious deficiency of, inter alia, the braking system, the steering linkages, the wheels/tyres, the suspension or chassis that would create such an immediate risk to road safety that it leads to a decision to immobilise the vehicle.
Transporting dangerous goods that are prohibited for transport or transporting such goods in a prohibited or non-approved means of containment or without identifying them on the vehicle as dangerous goods, thus endangering lives or the environment to such extent that it leads to a decision to immobilise the vehicle.
Carrying passengers or goods without holding a valid driving licence or carrying by an undertaking not holding a valid Community licence.
Driving with a driver card that has been falsified, or with a card of which the driver is not the holder, or which has been obtained on the basis of false declarations and/or forged documents.
Carrying goods exceeding the maximum permissible laden mass by 20% or more for vehicles the permissible laden weight of which exceeds 12 tonnes, and by 25% or more for vehicles the permissible laden weight of which does not exceed 12 tonnes.

4.2 4.2 Commission Regulation (EU) 2016/403

Serious infringements for the purposes of Article 6(2)(b)

Annex I establishes a common list of categories, types and degrees of serious infringements of the Union rules in commercial road transport which, in addition to those set out in Annex IV of Regulation (EC) No 1071/2009, may lead to the loss of good repute of a road transport operator. The tables divide the infringements into three categories of seriousness according to their potential to create a risk of fatalities or serious injuries. The tables cover the following areas:

Driving and resting time - Groups of infringements against Regulation (EC) No 561/2006 of the European Parliament and of the Council (1)
Tachograph - Groups of infringements against Regulation (EU) No 165/2014 of the European Parliament and of the Council (1)
Working time rules - Groups of infringements against Directive 2002/15/EC of the European Parliament and of the Council (1)
Weight and dimension rules - Groups of infringements against Council Directive 96/53/EC (1)
Technical roadside inspection - Groups of infringements against Directive 2014/45/EU of the European Parliament and of the Council (2) (Periodic roadworthiness tests) and Directive 2014/47/EU of the European Parliament and of the Council (3)
Speed limitation devices - Groups of infringements against Council Directive 92/6/EEC (1)
Initial qualification and periodic training of drivers - Groups of infringements against Directive 2003/59/EC of the European Parliament and of the Council (2)
Driving licences requirements - Groups of infringements against Directive 2006/126/EC of the European Parliament and of the Council (1)
Transport of dangerous goods by road - Groups of infringements against Directive 2008/68/EC of the European Parliament and of the Council (2)
Access to the international road haulage market - Groups of infringements against Regulation (EC) No 1072/2009 of the European Parliament and of the Council (1)
Access to the market for coach and bus services - Groups of infringements against Regulation (EC) No 1073/2009 of the European Parliament and of the Council (2)
Animal transport - Groups of infringements against Council Regulation (EC) No 1/2005 (1)

Commission Directive 2004/112/EC, adapting Council Directive 95/50/EC on uniform procedures for checks on the transport of dangerous goods by road, contains in its Annex II a detailed classification of infringements against the relevant provisions, divided, according to their level of severity, into three risk categories: risk category I, risk category II, risk category III.

The level of infringements against the provisions shall reflect the risk categories provided in Annex II to Directive 2004/112/EC, in such a way that risk category I = VSI (except those infringements which are already defined as MSI in Annex IV to Regulation (EC) No 1071/2009); risk category II = SI. Risk category III is equal to the level of minor infringement.

The level of liability of a carrier for the infringement is for the Member State to determine. See the Statutory Guidance and Statutory Directions. Other assistance might be obtained from the DVSA enforcement sanctions policy .

Annex II provides the maximum frequency of occurrence beyond which repeated serious infringements shall be regarded as more serious, by taking into account the number of drivers used for the transport activities managed by the transport manager, as set out below:

1 - The serious (SI) and very serious (VSI) infringements listed in Annex I, when committed repeatedly shall be regarded as more serious by the competent authority of a Member State of establishment. When calculating the frequency of occurrence of repeated infringements Member States shall take into account the following factors:

(a) seriousness of infringement (SI or VSI);

(b) time (at least one rolling year from the date of a control);

(c) number of drivers used for the transport activities managed by the transport manager (average per year)

2 - Taking into account the potential of creating a risk to road safety the maximum frequency of serious infringements beyond which they should be considered as more serious shall be established as follows:

3 SI/per driver/per year = 1 VSI
3 VSI/per driver/per year = launch of a national procedure on good repute

3 - The number of infringements per driver per year is an average figure calculated by dividing the total number of all infringements of the same level of seriousness (SI or VSI) by the average number of drivers employed during the year. The frequency formula provides for a maximum threshold for occurrence of serious infringements beyond which they shall be considered more serious. Member States may establish stricter thresholds if envisaged in their national administrative procedure for assessing good repute.

This replaces the list of infringements at Annex III of Directive 2006/22/EC.

Question 5

5. 5. Annex C - Suggested starting points for recommendations on applications

Accepted Answer

The following derives from the Senior Traffic Commissioner’s analysis of the available Upper Tribunal case law.

Each application must be dealt with on its own facts. In determining an application, the traffic commissioner must be satisfied that all of the requirements are met. The traffic commissioner will also exercise their gatekeeper function to promote fair competition within the industry. Similar to regulatory matters, there are many variables in applications and a variety of different variations in applicants failing to satisfy the traffic commissioner. What appears on the face of the papers to be very serious may not in fact be a barrier to grant. As a result, whilst the following guidance can provide for consistency in approach by suggesting starting points for recommendations this Annex cannot be used to predict the outcome of an application or give rise to a legitimate expectation. The traffic commissioner retains absolute discretion.

It should be noted that the burden of proof on an application differs from an existing licence holder. An applicant has the onus of satisfying the traffic commissioner that the statutory criteria are met whereas when taking action against an operator the burden is on the traffic commissioner to be satisfied that the requirements are no longer met.

5.1 5.1 Requirements for different Application Types

Standard PSV or Goods	Restricted PSV	Restricted Goods
Stable and effective establishment – operating centre (HGV only) and available vehicle	Operating centre	Operating centre
Good repute	Good repute	Fitness
Financial standing	Financial standing	Availability of financial resources to support maintenance
Professional competence	-	-
Satisfactory facilities	Satisfactory facilities	Satisfactory facilities
-	Main occupation	-

The applicant must satisfy the traffic commissioner that on the balance of probabilities all of the above requirements are met for the type of licence they are applying for. No other test applies.

5.2 5.2 Interims

Interim licences/directions can be granted for goods applications only and are always at the discretion of the traffic commissioner. A traffic commissioner can only grant an interim licence/direction where there is prima facie evidence that all of the requirements appear to be met. Should there be any evidence to cast doubt on the fulfilment of any of the requirements the caseworker will be unable to recommend the grant of an interim until the applicant provides evidence to satisfy the traffic commissioner that the requirement is met. In cases where further evidence is required to support a finding, the traffic commissioner may consider allowing a time limited interim to that effect (See Statutory Guidance and Statutory Directions on Case Management).

5.3 5.3 Content of the Application

An application for an operator’s licence must be made in writing, on the form supplied by the traffic commissioner (currently digital) and the applicant must sign it (see Statutory Guidance and Directions on Operating Centres, Stable Establishments and Addresses for Service for guidance on adverts). The application is submitted to the Office of the Traffic Commissioner so that it may be processed by a caseworker and considered by the traffic commissioner. Staff processing applications on behalf of the traffic commissioner make recommendations as to whether the application should be granted based on the statutory criteria being met and the ability of the applicant to meet the undertakings on the licence.

5.4 5.4 Withdrawal

An applicant is free at any time to withdraw an application subject to them forfeiting their fee, any outstanding matters will be considered on any future application. Once any regulatory process has begun, such as a public inquiry, an applicant is unable to withdraw the application in an effort to avoid negative findings. The starting point in this situation is to refuse the request and consider whether the applicant meets the statutory criteria.

5.5 5.5 Non-Chargeable Variations

When an applicant is applying to increase the total vehicle/trailer authorisation, in line with the vehicle/trailer authorisation across all operating centres, provided the applicant satisfies all of the requirements the caseworker should recommend grant of the increase. When an applicant is seeking to change operating centre address to one on the same Industrial Estate/road, vehicles will generally be entering and exiting the new site via the same route and there are no previous environmental issues, the caseworker should recommend grant.

5.6 5.6 Operating without Authority

It is understood that an applicant who submits an application following a vehicle encounter may wish to legalise their position however it is likely that their fitness to hold a licence will be called into question. They will need to demonstrate the steps they have taken since the incident to equip themselves with the range of knowledge to implement satisfactory arrangements.

5.7 5.7 Financial Review

In some cases, applicants are only able to demonstrate the availability of finances by way of a closing balance. These applicants can offer an undertaking to submit further financial evidence within 6 months of grant showing that on an average the requirement is met. When there is no other adverse information and the application is out of objection the caseworker should recommend that the application is granted subject to the undertaking. It is ultimately a matter of discretion whether to grant on that basis.

5.8 5.8 Schedule 4

Where an applicant applies for a Schedule 4 transfer the caseworker will need to pay regard to the location of the operating centre and any likely impact of extension of the review. Where there are no regulatory concerns the caseworker should recommend grant however where there is history of opposition at the site further detailed consideration will be required.

Goods Vehicle (Licensing of Operators) Act 1995. A Schedule 4 transfer, applicable to goods only, allows the transfer of an operating centre from one licence to another. See Statutory Guidance and Directions on Operating Centres, Stable Establishments and Addresses For Service. Read the guidance on transfer of operating centres for more information.

At sites where conditions and/or undertakings have been attached the applicant will need to agree for them to be transferred. It may be the case that they are no longer relevant and the caseworker could then make a recommendation for their removal. This is ultimately a matter of discretion for the traffic commissioner.

5.9 5.9 Surrenders

A caseworker might recommend that surrender of a licence is accepted, without the need for a completed SUR1 form, upon receipt of all licensing documentation and discs (or confirmation of their destruction) provided that there are no outstanding compliance issues. It follows in the case of administration, liquidation or receivership, where there are no current compliance issues and no associated applications or additional linked licences. Acceptance of surrender should be recommended upon receipt of all licensing documentation and discs (or confirmation of their destruction) from the insolvency practitioner.

5.10 5.10 Insolvency

When an applicant has previously been declared bankrupt they should in the first instance provide a copy of their discharge certificate. When an individual has been involved in an entity that has entered insolvency they should provide a copy of the insolvency report. Upon receipt of the above and satisfactory financial evidence where there has been no previous licensing or compliance history, the caseworker should recommend grant of the application.

5.11 5.11 Regulation 31

Where an application for Regulation 31 is received following the death of the licence holder and when that licence is not subject to compliance proceedings a recommendation should be made to grant for a period up to 12 months (see Statutory Guidance and Statutory Directions on Legal Entities).

Question 6

6. 6. Annex D - Suggested starting points for consideration of regulatory action

Accepted Answer

The following derives from the Senior Traffic Commissioner’s analysis of the available Upper Tribunal case law but please also note Annex B above.

Each case must be dealt with on its own facts. In determining how to dispose of most cases the traffic commissioners will not only consider the alleged infringements but also the potential impact on the operator. A case may involve many variables including different variations of alleged breaches, negative and positive features. What appears on the face of the papers to be very serious may not in fact warrant severe regulatory action.

As a result, whilst the following guidance can provide for consistency in approach by suggesting starting points for regulatory action this Annex cannot be used to predict the outcome of a public inquiry or give rise to a legitimate expectation. The presiding traffic commissioner retains absolute discretion to move up or down from the suggested starting points.

Severe

Revocation with detailed consideration of disqualification
Revocation
Suspension for an extended time period that materially affects the transport operation
Significant indefinite curtailment that materially affects the transport operation

Serious

Revocation with consideration of disqualification
Suspension for up to 28 days
Significant time limited curtailment that may materially affect the transport operation

Moderate

Suspension for up to 14 days
Indefinite or time limited curtailment that does not materially affect the transport operation, such as removal of the margin

Low

Formal warning that attendance at a further public inquiry will be likely to lead to regulatory action being taken against the licence

Please Note:

curtailment includes attachment of a condition limiting the number of PSVs on the licence
nothing in the above precludes the traffic commissioner from recording further undertakings and/or statements of intent from the operator
none of the lists in this Annex below are intended to be exhaustive.

Positive features

No operator fault, recklessness or negligence with no undue risk to road safety or unfair commercial advantage
Isolated incident and/or driver deliberately disregarding appropriate instruction and/or legislation
Effective management control and appropriate systems and procedures in place to prevent operator licence failings
Effective analysis procedures in place to detect falsification, drivers’ hours (EC & domestic) and/or Working Time Directive infringements
Proper and effective driver/maintenance staff training with appropriate monitoring and disciplinary procedures in place
Isolated incident with no previous offending history
Sufficient and effective changes made, with tangible evidence in support, to ensure compliance
Driver deliberately disregarding appropriate instruction from employer
Operator co-operated with enforcement investigation
No road safety critical defects or “S” marked prohibitions
Low prohibition rate
Above average first time pass rate at MOT
Evidence of an effective driver defect reporting system including daily walk round checks and training.

Negative features

Deliberate and/or reckless act/s by operator and/or drivers that led to undue risk to road safety or unfair commercial advantage
Persistent offending
Substantial number of previous prohibitions, or fixed penalty notices or convictions and/or failure to notify to the traffic commissioner within 28 days
Ineffective management control and insufficient or no systems and procedures in place to prevent operator licence compliance failings
Ineffective or no analysis procedures in place to detect falsification, drivers’ hours (EC & domestic) and/or Working Time Directive infringements
Ineffective or insufficient driver training with insufficient or ineffective monitoring and disciplinary procedures in place, such as no training with regard to the conduct of the driver walk round check and the completion of the driver defect report
Insufficient and/or ineffective changes made to ensure future compliance
Operator failed to co-operate with or deliberately obstructed enforcement investigation, such as failure to produce maintenance records or driver records
Evidence of tampering with tachograph recording equipment or use of devices (for example, a magnet or interrupter switch) and insufficient action by operator to detect the same
Insufficient procedures in place to ensure appropriate use of tachograph or manual records (including digicards) by drivers
Road safety critical defects on any vehicle or trailer in service or any “S” marked prohibition or prohibitions issued at MOT
High prohibition rate
Low average first time pass rate at MOT or multiple failure items at MOT
Evidence of previous unsatisfactory maintenance investigations, warning letters or public inquiries

This list is not exhaustive.

6.1 6.1 Starting points for regulatory action

Conduct	Regulatory starting point
Deliberate or reckless act(s) that compromised road safety and/or gave the operator a clear commercial advantage and/or operator caused or permitted driver offending and/or any attempt by the operator to conceal offences or failings	Severe
Persistent operator licence failures with inadequate response or previous public inquiry history	Severe to serious
Two or more negative features not already detailed under “Conduct” above and some positive features	Serious to moderate
Limited negative feature(s) not already detailed under “Conduct” above and several positive features	Moderate to low

Question 7

7. 7. Annex E - Alternative disposals to a public inquiry

Accepted Answer

7.1 7.1 Procedure for Senior Team Leader and operator interviews

Introduction

Some cases might appear on the papers to require the convening of a public inquiry but they may, in actual fact, be dealt with by an alternative disposal. Operators, applicants and/or drivers can submit written representations in response to reports of non-compliance or other adverse information. There is no requirement on traffic commissioners to engage with applicants, operators, drivers or other parties immediately prior to a hearing or during those proceedings.

Preliminary Hearings and meetings between senior staff and operator are intended to offer an alternative to a public inquiry. If an operator requests a public inquiry, following on from a Proposal to Revoke letter, the traffic commissioner may still determine that a Senior Team Leader (STL) interview or Preliminary Hearing is required and the operator will be advised that the hearing or meeting is a preliminary matter to determine how a public inquiry might proceed.

In borderline cases, where a public inquiry looks to be required, a traffic commissioner may decide to call an operator to a preliminary hearing. In situations which fall short of an obvious need to call an operator and/or transport manager, the traffic commissioner may request an STL interview. This Annex sets out a consistent approach to the administration and purpose of these alternatives to public inquiry.

Submissions

In general any regulatory submission will seek to identify what has gone wrong and, for example, if it is a repeat issue and if so from when; has anything else changed; whether the TM was seen (standard licences); what was the response to these issues; and whether further information might be required.

The STL enjoys delegated power on behalf of the traffic commissioner within defined parameters. An STL interview is unlikely to be appropriate in the following circumstances:

the operator is operating more vehicles than it has authority for;
the operator was abusive to the DVSA Examiner/investigating officer or failed to stop when requested to do so;
there are real concerns about repute, professional competence or financial standing;
the failings are across a number of areas required by the operator licence;
there are large scale failures to comply with the drivers’ hours’ rules and tachograph regulations.

When recommending an STL interview to the traffic commissioner, the following approach is to be adopted. The submission must first address what regulatory action the traffic commissioner is likely to take by reference to this and other Statutory Guidance and Statutory Directions, for example no further action (NFA), formal warning, the recording of further undertakings or the receipt of assurances from the operator, suspension, curtailment or revocation. If the action is not likely to involve suspension, curtailment or revocation, the STL can proceed to consider whether the case falls within the following criteria:

The failings of the operator are specific to one area, such as brake failures or small extensions of PMI frequencies and are not considered significant enough to fall into the serious or severe category. If they are limited or specific to one particular matter an STL meeting might be considered.
The shortcomings identified by the original DVSA investigation although serious, have been updated by a DVSA Desk Based Assessment showing satisfactory arrangements are now in place. The STL must consider whether or not the traffic commissioner has got a picture that is sufficient to allow them to make a valid decision for future compliance.
Single issue incidences of non-compliance, e.g. load issues, fixed penalty notices, etc., where the operator would benefit from the opportunity to provide further evidence to demonstrate future compliance.
Where, on application, further information is required to satisfy a traffic commissioner on specific elements. This may include (but are not restricted to) eligibility to hold a restricted PSV operator’s licence, links to other entities, concerns over an operating centre, financial evidence or transport manager duties.
Cases of non-compliance with local bus service registration where the level of non-compliance is not considered serious but requires intervention, or where there is benefit for the operator to be granted an opportunity to present evidence of reasonable excuse in order to crystalise the matter before the traffic commissioner.
How serious and extensive were the prohibitions that were issued; are any S marked? If the prohibition notices were delayed and not extensive an STL meeting might allow an opportunity to examine how the operator has responded. The presence of an S marked prohibition is not a barrier to an STL interview.
If there is an immediate risk to road safety the traffic commissioner will need to consider how best to address that risk, either through early assurances or whether to convene an urgent public inquiry. It is anticipated that these types of cases will be the exception and they will require careful consideration by the STL and traffic commissioner.
Did the operator co-operate with the DVSA investigation or enquiries made by the OTC? For example, did the operator respond quickly and was it positive? If so, an STL meeting might be considered.

In making a submission for an STL interview, the caseworker should identify actions which might assist to ensure future compliance and therefore act as a basis for the proposed STL interview. A non exhaustive list of the suggested actions is set out below:

an audit to be carried out in 6, 9 or 12 months and the report and the remedial action taken to be sent to the OTC within a month of completion of the audit.
transport manager training such as attendance on a recognised CPC refresher course within 6, 9 or 12 months with evidence of attendance to be sent to the OTC no later than a month from attendance.
driver training on matters such as, (a) effective driver defect reporting and how to conduct the driver daily walk round check; (b) the EC drivers’ hours’ rules and tachograph regulations, or the domestic drivers’ hours’ rules of the working time directive rules; (c) the safe loading of vehicles and vehicle security generally.
any other undertakings relevant to the identified shortcomings. Undertakings should not be suggested if they do not directly concern the identified issues failings. Examples might include: that all vehicles will be subject to roller brake tests 4 times a year, once to include the annual test, or that the operator will change its maintenance arrangements, or that the operator will implement a new tachograph analysis system.

The traffic commissioner can then make an early neutral evaluation of the case and indicate a possible disposal. The traffic commissioner may indicate specific matters by way of an agenda to be discussed at the STL interview, such as prohibitions, MOT failure rate, finances et cetera. Examples of the suggestions of the type of outcome that the operator might be invited to agree at an STL interview are set out below. The list is not exhaustive. If the traffic commissioner accepts that an STL interview is appropriate s/he should record and may indicate that:

if the operator agrees to accept the proposed outcome then the matter can be concluded without further reference to the traffic commissioner, or
if the meeting with the operator leads the STL to a different conclusion or the operator is not prepared to agree the proposed outcome, the matter must be referred back to the traffic commissioner, by way of submission, for further consideration.

Attendance by the operator

The letter inviting the operator to a Preliminary Hearing or an STL interview will advise the operator of the purposes of the invitation and the matters to be considered. Those issues will be identified again at the commencement of the Preliminary Hearing or STL interview. There is no requirement to publish a statutory notice but a Preliminary Hearing is generally held in public. Both Preliminary Hearings and STL interviews will be recorded. They should both follow a consistent structure:

prior to a Preliminary Hearing or STL interview (and at least 14 days in advance) the Traffic Area Office will write to the operator identifying the operator licence failures either in summary form or by the inclusion of any reports that have been put before the traffic commissioner;
the operator will be asked to attend with documentary evidence of current compliance such as maintenance records and tachograph or domestic hours’ legislation compliance (see above);
the person attending may be asked for written confirmation of their authority to bind the operator to any undertakings etc;
in the event that the operator does not attend or does not request an alternative date any initial recommendation for regulatory action will stand;
a Preliminary Hearing will always be clerked; at an STL interview the senior member of staff must always be accompanied by another member of staff who will make notes;
the parties who attend are entitled to be accompanied by a legal or other representative as if they were attending a public inquiry or driver conduct hearing;
within 14 days of an STL interview the senior member of staff will make a final recommendation to the traffic commissioner as to the type of regulatory action that they might like to consider.

In all cases the traffic commissioner may direct that certain documents are to be brought to a Preliminary Hearing or STL interview, such as:

the last 3 inspection records for each vehicle; if there are more than 10 vehicles then the traffic commissioner may direct a sample of records;
tachograph analysis records and details of infringement action taken (if related to drivers’ hours’ issues).

Outcome

A Preliminary Hearing is held to determine whether a Public Inquiry is necessary. An operator will usually be notified of that decision at the conclusion of the hearing. The grounds for a public inquiry will be communicated subsequently in the calling in letter.

Depending upon what was agreed by the traffic commissioner prior to an STL interview it will conclude with either:

The operator being advised of the outcome - you have agreed to these undertakings and proposed outcome (such as voluntary outcome) and a warning letter will be issued; or
The operator being advised that the matter will be referred back to the traffic commissioner for further consideration and the operator will be notified of the outcome in due course.

In both instances a formal warning can be issued without the consent of the operator; this is not regulatory action and therefore does not give rise to a right of appeal. An operator can ask the traffic commissioner to reconsider the issue of a warning issued by a senior member of staff.

Apart from the above very limited circumstances, if the discussions with the operator lead the STL to conclude that a different outcome is required, the matter must be referred back to the traffic commissioner for further consideration. The STL can therefore:

1 - issue the warning letter and make a note on the record provided that the traffic commissioner has already indicated this is an acceptable potential disposal. Potential disposals to be agreed by the traffic commissioner might include:

a voluntary curtailment of the fleet/variation of the condition for the number of vehicles to be operated under it;
withdrawal of the application for or variation of a licence;
withdrawal of the application by a specified transport manager;
the voluntary resignation of the transport manager from this or other licence(s) and a period of grace for an alternative to be identified and named on the operator licence;
additional undertakings in accordance with those suggested to the traffic commissioner.

2 - If the traffic commissioner has not agreed a course of action prior to the interview or the interview outcome is different from that identified prior to the interview ( the operator considering an undertaking to be inappropriate, for example), the STL will update the submission and refer it back to the traffic commissioner with an amended recommendation. This might include alternative undertakings that the operator has indicated that it is willing to give or a public inquiry as further issues have been uncovered or other courses of action.

3 - If, as a result of the evidence produced by the operator at the meeting the STL decides that no further action (NFA) is required or that no undertakings are required (because remedial action has already been completed by the operator) but that a warning should still be issued then they can do so without further reference back to the traffic commissioner.

The outcome of either a Preliminary Hearing or an STL interview must be recorded and may be made public.

Question 8

8. 8. Annex F - Disqualification

Accepted Answer

8.1 8.1 Section 28 – The Goods Vehicles (Licensing of Operators) Act 1995

(1) Where, under section 26(1) or 27(1), a traffic commissioner directs that an operator’s licence be revoked, the commissioner may order the person who was the holder of the licence to be disqualified (either indefinitely or for such period as the commissioner thinks fit) from holding or obtaining an operator’s licence; and so long as the disqualification is in force –

(a) any operator’s licence held by him at the date of the making of the order (other than the licence revoked) shall be suspended, and

(b) notwithstanding anything in section 13 or 24, no operator’s licence may be issued to him.

(2) If a person applies for or obtains an operator’s licence while he is disqualified under subsection (1) –

(a) he is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale, and

(b) any operator’s licence issued to him on the application, or (as the case may be) the operator’s licence obtained by him, shall be void.

(3) An order under subsection (1) may be limited so as to apply only to the holding or obtaining of an operator’s licence in respect of one or more specified traffic areas and, if the order is so limited –

(a) paragraphs (a) and (b) of that subsection and subsection (2) shall apply only to any operator’s licence to which the order applies, but

(b) notwithstanding section 5(4)(b), no other operator’s licence held by the person in question shall authorise the use by him of any vehicle at a time when its operating centre is in a traffic area in respect of which he is disqualified by virtue of the order.

(4) Where the traffic commissioner makes an order under subsection (1) in respect of any such person, the commissioner may direct that if that person, at any time or during such period as the commissioner may specify –

(a) is a director of, or holds a controlling interest in –

a company which holds a licence of the kind to which the order in question applies, or
a company of which such a company is a subsidiary, or

(b) operators any goods vehicles in partnership with a person who holds such a licence,

that licence of that company or, as the case may be, of that person, shall be liable to revocation, suspension or curtailment under section 26.

(5) The powers conferred by subsections (1) and (4) in relation to the person who was the holder of a licence shall be exercisable also –

(a) where that person was a company, in relation to any director of that company, and

(b) where that person operated vehicles under the licence in partnership with other persons, in relation to any of those other persons;

and any reference in this section or in section 26 or 29 to subsection (1) or (4) above includes a reference to that subsection as it applies by virtue of this subsection.

(6) The traffic commissioner by whom any order disqualifying a person was made under subsection (1) may at any time –

(a) cancel that order together with any direction that was given under subsection (4) when the order was made4;

(b) cancel any such direction; or

(c) with the consent of the person disqualified, vary the order or any such direction (or both the order and any such direction).

(7) Where an operator’s licence is suspended under this section, the licence remains in force during the time of its suspension subject to the limitation that no vehicles are authorised to be used under it.

(8) For the purposes of this section a person holds a controlling interest in a company if he is the beneficial owner of more than half its equity share capital (as defined in section 744 of the Companies Act 1985).

8.2 8.2 Section 28 – The Transport Act 1985

(1) Where the traffic commissioner for any traffic area revokes a PSV operator’s licence, he may order the former holder to be disqualified, indefinitely or for such period as he thinks fit, from holding or obtaining a PSV operator’s licence.

(2) So long as a disqualification imposed under subsection (1) above is in force with respect to any person,

(a) any PSV operator’s licence held by him at the date of the making of the order under subsection (1) above (other than the licence revoked) shall be suspended (that is, shall remain in force subject to the limitation that no vehicles are authorised to be used under it); and

(b) notwithstanding section 14(4) of the 1981 Act, no PSV operator’s licence may be granted to him.

(2A) If a person obtains a PSV operator’s licence while he is disqualified under subsection (1) above, the licence shall be void.

(3) An order under subsection (1) above may be limited so as to apply only to the holding or obtaining of a PSV operator’s licence in respect of the area of one or more specified traffic commissioners and, if the order is so limited, subsection (2) above shall apply only to any PSV operator’s licence to which the order applies.

(4) Where a traffic commissioner makes an order under subsection (1) above with respect to any person, he may direct that if that person, at any time during such period as he may specify—.

(a) is a director of, or holds a controlling interest in—

a company which holds a licence of the kind to which the order applies; or
a company of which a company which holds such a licence is a subsidiary; or

operates any public service vehicles in partnership with a person who holds such a licence;

the powers under section 17(2) of the 1981 Act (revocation, suspension, et cetera, of PSV operators’ licences) shall be exercisable in relation to that licence by the traffic commissioner by whom it was granted.

(5) The powers conferred by this section in relation to the person who was the holder of a licence shall be exercisable also—

(a) where that person was a company, in relation to any officer of that company; and

(b) where that person operated the vehicles used under the licence in partnership with other persons, in relation to any of those other persons and any reference in subsection (6A) below to subsection (1) above or to subsection (4) above includes that subsection as it applies by virtue of this subsection.

(6) A traffic commissioner shall not make any such order or give any such direction without first holding an inquiry if any person affected by the proposed order or direction requests him to do so.

(6A) The traffic commissioner by whom any order disqualifying a person was made under subsection (1) above may at any time—

(a) cancel that order together with any direction that was given under subsection (4) above when the order was made;