Michael Jewell looks at two recent appeal decisions by the Upper Tribunal that are important for operators in the following areas: corresponding with the Traffic Area Office in relation to the transport manager questionnaire, and “fronting”.

Appeal lost: transport manager questionnaire not completed

Sittingbourne-based Terry Friar, trading as TW Friar Transport, lost his appeal against the revocation of his licence by the South Eastern & Metropolitan Traffic Commissioner, Nick Denton, for a failure to respond to letters from the Office of the Traffic Commissioner (OTC).

The Tribunal said that in September 2011 letters were sent by the Central Licensing Unit (CLU) to all operators and transport managers drawing attention to some of the changes to the legislation that were to be introduced on 4 December 2011 under Regulation 1071/2009, which is establishing a Europe-wide electronic register of O-licence holders.

In particular, attention was drawn to the changes that related to transport managers. A guidance note and a questionnaire were enclosed, and the letter stressed that the information requested in the questionnaire had to be supplied.

Reminders

In March 2012, a reminder was sent by the CLU to all operators and transport managers who had not responded to the first letter and, in July 2012, a final “chase up” letter was sent. No reply was received to that letter.

Mr Friar made no request for a Public Inquiry nor was there any application for a period of grace in which to appoint a new transport manager. As a consequence, the Commissioner revoked the licence.

In his Notice of Appeal, Mr Friar said that a transport manager had been put forward, contrary to what had been said in the July letter. That bald statement in the Notice of Appeal was wholly unsupported by any additional information. The Tribunal did not know the name of the person concerned or when the person was put forward, and it had not been provided with a completed questionnaire.

If Mr Friar only took action after the licence had been revoked, the Tribunal was not permitted to take those steps into account. On the other hand, if he took action earlier, he could and should have informed the Traffic Commissioner.

The main problem in this case was that Mr Friar failed to answer any of the letters that were sent to the address or addresses provided to the OTC. The Tribunal had stressed on many occasions that it is the responsibility of the operator to provide the Traffic Commissioner with a reliable address or addresses at which correspondence would be received. The Notice of Appeal gave a different address for Mr Friar from that to which the letter notifying the licence revocation was sent, so it was possible that Mr Friar changed his address without complying with the undertaking to notify the Traffic Commissioner.

The Tribunal had also stressed on many occasions that it is the responsibility of operators to reply, in a timely fashion, to any letter from, among others, the Traffic Commissioner, the OTC or the CLU. Failure to do so is likely to lead the Traffic Commissioner to suspect that there has been a material change in circumstances, eg an unauthorised change in operating centre or a change in correspondence address that has not been notified, or that the operator has ceased to operate. Persistent failure to reply to letters will drive the Traffic Commissioner to one or more of those conclusions.

Licence revoked

In the present case, the nature of the correspondence and the persistent failure to reply led the Traffic Commissioner to the conclusion, among others, that Mr Friar was no longer professionally competent, which meant that the Traffic Commissioner had no option but to revoke the licence. The failure of Mr Friar to reply to any of the letters, which obviously dealt with something going to the heart of operator licensing, left the Traffic Commissioner no choice.

O-licence “fronting”

The second appeal in this article covers the Upper Tribunal’s upholding of the decision of Eastern Deputy Traffic Commissioner Gillian Elkins, who refused an application for a licence by Colchester-based Silvertree Transport Ltd and had disqualified the nominated transport manager Paul Weinstein from acting as such for three years. She directed that Weinstein was not allowed to re-enter the transport industry after the disqualification period until he had retaken and passed the necessary exams to obtain a new Certificate of Professional Competence. Elkins’ decision followed evidence of unlawful operation, including the use of O-licence discs belonging to two dissolved companies.

The Tribunal said that in the context of vehicle O-licensing, “fronting” is when a person, partnership or company that does not have an O-licence uses the O-licence held by another entity to conceal the fact that it is required to have its own O-licence. It deprives the Traffic Commissioner of the right to control an “operator”, when Parliament has said that such an entity should be within his or her jurisdiction.

In the Tribunal’s view, once a Traffic Commissioner is satisfied that fronting has taken place, he or she is entitled to take a serious view of such conduct. Those concerned must understand that such a finding puts the good repute of those involved in jeopardy. The reason is that fronting involves deception. Where the police or VOSA stop a vehicle that is being operated in this way, appearances will be deceptive and, in reality, a criminal offence is being committed and the vehicle is liable to be impounded. In addition, operating behind the front of respectability provided by the O-licence holder deprives the Traffic Commissioner of jurisdiction over the real operator of the vehicle or fleet in question. The Traffic Commissioner, of course, retains jurisdiction over the licence holder who has been used to provide the front of respectability. That entity is likely to be called to a Public Inquiry to consider whether or not to revoke the O-licence for loss of good repute. Because the real operator of the vehicle or fleet in question does not hold an O-licence, the Traffic Commissioner is deprived of jurisdiction over them unless and until that entity applies for an O-licence. “Fronting”, therefore, involves conduct that can seriously undermine the effectiveness of the regulatory regime.

Transport managers need rehabilitation if they lose repute

The Tribunal said that paragraph 17(2) to schedule 3 to the Goods Vehicles (Licensing of Operators) Act 1995 provides that “the traffic commissioner by whom a disqualification order is made under paragraph 16(2) may specify measures with which the disqualified person must comply before the order can be cancelled or varied” (ie before the disqualified person can be rehabilitated).

The history of this case demonstrates a lamentable ignorance on the part of Mr Weinstein as to the duties and responsibilities of a transport manager, made all the worse by his admitted ignorance of the changes made by EU Regulation 1071/2009 in December 2011. Respect for, and proper compliance with, the regulatory regime ideally required that Mr Weinstein should not be in a position to act as a transport manager until he could demonstrate that he was familiar with the up-to-date requirements of that position.

Full transcripts of the judgments Terry William Friar T/a Terry Friar Transport Neutral Citation Number [2013] UKUT 033 (AAC) Appeal T/2012/69 and Silvertree Transport Ltd Neutral Citation Number [2013] UKUT 0117 (AAC) Appeal T/2012/71 are available from the Upper Tribunal website.

Last reviewed 27 March 2013