Neutral Citation Number: [2012] UKUT 314 (AAC)

Appeal No.  T/2012/23

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Simon Evans DEPUTY TRAFFIC COMMISSIONER for the North Western Traffic Area

Dated 20 April 2012

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

JA & VC FRYER FARMS

 

 

 

 

Attendances:

For the Appellant: Mr Joseph Fryer appeared in person on behalf of the Appellant.

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 24 August 2012

Date of decision: 10 September 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Miscellaneous, right to appeal a formal warning.

 

 

CASES REFERRED TO:-

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area to issue a formal warning to the Appellant and to direct that the undertakings imposed on 5 October 2011 should remain in force.

2.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   The Appellant is the holder of a standard national goods vehicle operator’s licence authorising one vehicle and one trailer, which was granted on 14 November 1991.

(ii)                 On 21 March 2006, following a Public Inquiry before a Deputy Traffic Commissioner the licence was curtailed by one vehicle, leaving the current authorisation.  In addition three undertakings were recoded on the licence, the first in these terms:

“The authorised vehicles and trailer will be presented to the goods vehicle testing station on a quarterly basis for multi point checks”.

(iii)                On 28 April 2011 a Vehicle Examiner from VOSA visited the Appellant’s operating centre by prior appointment.  Two vehicles were inspected and found to be free of defects.  It was discovered that maintenance was being conducted ‘in house’ by two skilled mechanics.  The Vehicle Examiner was informed that the pervious maintenance contractor had cancelled the contract, however the Office of the Traffic Commissioner, (“OTC”), had not been informed of the change in maintenance arrangements.  Mr J Fryer said that he was not aware of the requirement to notify the OTC.  Inspection records were suitable and the inspection intervals of 6 weeks were adhered to.  The forward planning and drivers defect reporting systems were satisfactory, subject to minor advice on the completion of forms.  Nevertheless the investigation was considered to be unsatisfactory for four reasons.  These were (i) the number of prohibitions issued since the Public Inquiry in 2006, (ii) the change in maintenance arrangements without notification, (iii) multi checks, had only been undertaken for a year and the records had not been retained, (Mr J Fryer said he was not aware of the duration of the undertaking), and (iv) an MOT failure rate of 100%.  In relation to prohibitions issued over the previous 5 years these arose because prohibitions were issued to three out of the eleven vehicles checked at the roadside and, in addition a prohibition was issued to a vehicle at annual test and four roadworthiness prohibition (variation and refusal notice) notices were issued to vehicles submitted for clearance of prohibitions.  The main reasons were tyre and brake defects.

(iv)                On 21 July 2011 the Office of the OTC wrote to the Appellant indicating that the Traffic Commissioner had decided to hold a Public Inquiry on 5 September 2011.  The reason given was that prohibitions had been issued, there were maintenance shortcomings, apparent failure to comply with statements of intent and undertakings and concerns regarding repute financial standing and professional competence.  In summary the evidence supporting these reasons was (i) a report from VOSA, (ii) a list of roadworthiness prohibitions issued over the previous 5 years, (iii) the partnership’s previous history of a warning letter issued on 21 October 2004 and a Public Inquiry on 21 March 2006 and (iv) a list of the statements of fact or expectation which appeared to have been false or not to have been fulfilled.  The Appellant was invited to submit representations by 29 August 2011.

(v)                 On 12 August 2011 David Fryer responded on behalf of the Appellant.  He requested that the Vehicle Examiner should attend the Public Inquiry and set out aspects of his evidence that would be challenged.  In addition he asserted that the Appellant was told at the Public Inquiry on 21 March 2006 that it did not need to do multi checks after a year and that the Traffic Commissioner’s own records stated that the records could be deleted after 15 months.

(vi)                In order to arrange for the attendance of the Vehicle Examiner the Public Inquiry was adjourned to 5 October 2011.  It took place before the Deputy Traffic Commissioner.  The Vehicle Examiner attended, as did Joseph Fryer, David Fryer, and a driver/mechanic, Mr Mayer on behalf of the Appellant.

(vii)              The Vehicle Examiner gave evidence and adopted his report, which has been summarised above.  In addition he produced two recent print-outs.  The first showed the MOT history over the previous 5 years and indicated that the failure rate, at initial presentation, was 100%.  This was broken down into two outright failures and three occasions on which the vehicle only passed after minor rectifications on site, though this counts as an initial failure.  The second showed that a delayed prohibition had been issued for an oil leak in late August 2011 and that an immediate prohibition was issued when the vehicle was presented in an unsuccessful attempt to clear the prohibition.

(viii)             In cross examination of the Vehicle Examiner Mr Fryer asked whether the law required that a vehicle must pass the MOT at the first attempt.  The Vehicle Examiner said that the vehicle had to have a current MOT certificate if it was to be used, lawfully, on a road.  The Deputy Traffic Commissioner intervened to make the point that his view was that the sign of a good operator is that when presented for an MOT test its vehicles pass first time.  When asked why he had not inspected the maintenance facilities the Vehicle Examiner explained that he was satisfied by the explanation he had been given.  When it was suggested that the explanation for one MOT failure was that the cable had snapped the Vehicle Examiner accepted that this can happen.  Pressed further about prohibitions the Vehicle Examiner accepted that a couple were minor but he insisted that others could have been avoided.  Pressed about MOT failures the Vehicle Examiner accepted that language difficulties could have been a problem in relation to failures for brake performance but he pointed to other reasons for failure, which would not have arisen from language difficulties.

(ix)                David Fryer was the first witness for the Appellant, though his evidence was accompanied by regular interventions from Joseph Fryer.  At the start of his evidence the Deputy Traffic Commissioner sought to focus attention on the question of why the vehicles always failed MOT tests on initial presentation when it appeared that the Appellant had good facilities and qualified mechanics.  In response David Fryer pointed out that out of six roadside stops two vehicles had passed without problem.  He went on the explain that the nature of the Appellant’s business meant that they were delivering to farms, and that on some occasions vehicles were stopped and prohibitions were issued as a result of damage caused by the state of the road leading to the farm.  The Deputy Traffic Commissioner pointed out that road safety is determined by the state of vehicles whenever they are on the road and that while the fact that the driver was Polish might be relevant on some occasions it was straining credulity to suggest that it was the only explanation.  Both David Fryer and Joseph Fryer raised the question of Polish drivers having difficulty responding correctly to instructions given in the course of MOT tests, with the result that vehicles were failed when they said that they should have passed.

(x)                 The Deputy Traffic Commissioner moved on to the undertakings given at the end of the 2006 Public Inquiry.  He pointed out that there was no time limit on the requirement to submit vehicles for multi checks in the undertaking.  David Fryer said: “that’s what Mr Fryer was advised by his solicitor at the time … and it, it wasn’t by Mr Mulvenna”, (the Deputy Traffic Commissioner who conducted the 2006 Public Inquiry).  The Deputy Traffic Commissioner intervened to suggest that they had made the decision for themselves and that the Vehicle Examiner was correct in recording that they did not know how long the undertaking was to last and decided that it would be for twelve months.  Joseph Fryer then intervened to say: “No that’s what we were told on the day, that it was for twelve months and it’s automatically you stop then”.  When the Deputy Traffic Commissioner pointed out that the result of this Public Inquiry was set out in a letter Joseph Fryer began to set out way in which they had complied with other undertakings imposed at the same time.  The Deputy Traffic Commissioner returned to the real issues asking: “How are you going to make sure that your vehicles usually, they probably cannot be perfect, usually pass their MOT first time – and how are you going to avoid getting prohibitions”.  Joseph Fryer replied: “Right, well we’re going to, to check the vehicle every, every weekend now and make sure, go round it every weekend myself and make sure I’ve checked every point that, that might possibly have …”.  A little later he said that they were trying to improve all the time but that there was a problem over language.

(xi)                After a brief adjournment the Deputy Traffic Commissioner gave an oral decision.  He indicated that he was adjourning the matter for six months to give the Appellant an opportunity to show that there was no need to take serious action in relation to the licence.  He said that his expectation was that in the next six months steps would be taken to reduce the number of prohibitions, hopefully to none, and that this, in turn, should improve the MOT pass rate.  He stressed that at the next hearing he would be examining the Appellant’s record and ability to be compliant.  He pointed out that with the licence already curtailed to one vehicle the scope for disciplinary action was limited to suspension or revocation.  He imposed undertakings in relation to (i) the nil defect reporting system, which was to show rectifications, (ii) driver walk-round checks at the start of the day and after a vehicle has been on rough ground, (iii) thorough and effective pre-MOT inspections and (iv) quarterly multi-checks.  The Public Inquiry was adjourned to 20 April 2012.

(xii)               On 5 April 2012 the OTC wrote to the Appellant offering to dispense with the adjourned Public Inquiry if the Appellant was prepared to accept the issue of a formal warning letter.  The grounds for issuing a formal warning were the issue of prohibitions, the fact that statements of fact had not been fulfilled and the breach of undertakings, in other words some of the matters which gave rise to the original call-up letter.  The reason for offering to dispense with the Public Inquiry was that the Deputy Traffic Commissioner had noted that there had been no further prohibitions although there did appear to have been a further MOT failure.

(xiii)             On 6 April 2012 Mr Joseph Fryer telephoned the OTC to ask what a formal warning was.  The summary of the call records: “As with previous call Mr Fryer would not let me answer his questions.  He became loud and confrontational and accused me of ranting at him”.  He indicated that he did not want a formal warning and that he would attend the adjourned Public Inquiry.

(xiv)             The adjourned Public Inquiry took place on 20 April 2012.  Joseph Fryer attended to represent the Appellant company together with an employee Mrs Riddell.  The Deputy Traffic Commissioner reminded Mr Fryer of the reasons for the adjournment and of the offer to deal with the matter by a formal warning.  He repeated that offer adding the warning that if the Public Inquiry continued and matters emerged making revocation or suspension appropriate those options remained open.  Mr Fryer replied that he had made his decision, by attending, so that the Public Inquiry should continue.

(xv)              He challenged the assertion that there had been a further MOT failure in the period between the two Public Inquiries.  He explained that the basis of the refusal concerned spray suppression equipment and that the person responsible for failing the vehicle had misinterpreted the rules.  He said that he went with the vehicle when it was re-submitted to the testing station the following day, pointing out that given the age of the vehicle the rules stated that the spray suppression equipment did not need to cover the full width of the tyre.  No further work had been done on the vehicle, which was then passed.

(xvi)             The Deputy Traffic Commissioner then explained that he was interested in the steps that had been taken to prevent further prohibitions, which appeared to have been successful, and why the vehicle had failed the MOT, which they had already debated.  He said that it was these matters, which would determine whether it was appropriate to take any form of action against the licence. 

(xvii)            Mr Fryer replied that he was interested in making sure that the Appellant didn’t get any more discrimination against its Polish drivers.  He claimed that: “as soon as they open their mouth they, they’ll just want to find something wrong with that vehicle: every time they’ve told me this”.  The Deputy Traffic Commissioner accepted that this was an issue which Mr Fryer had raised at the earlier hearing.  He said that he had not made any decision on issues of discrimination and went on: “This is not a venue to deal with issues of discrimination against your company directly, their relevance in particular relates to the issue of prohibitions because that is something you have been brought here in relation to”.  The Deputy Traffic Commissioner pointed out that the Appellant had been called to the Public Inquiry on other matters where discrimination was not an issue but asked Mr Fryer to explain the nature of the discrimination.  In summary Mr Fryer said that once it was apparent that the driver was foreign: “in this situation when they get stopped on the side of the road, they seem to pick on them for no reason at all and they, they go over it with a fine toothcomb to say, ‘we’ve, we’ve got him, we’ve found something, we’ll…’ – They tell me this when they, when they come back…”.  He went on to explain that MOT failures occurred because the Polish drivers did not always understand the instructions they were given as the test was being carried out.  The Deputy Traffic Commissioner pointed out that four prohibitions were issued, by different Vehicle Examiners, to the same driver on different occasions.  Mr Fryer intervened to say: “My view is that they’re being more severe on him than they need to be; that’s what’s happening”.  He went on to say that the Appellant’s lorry is distinctive and: “they know exactly where that lorry is all the time and so they tend to look out for him…”.  He said that the vehicle had been stopped more than four times.  When it was pointed out that no action had been taken on the other occasions he replied: “Well they’re, they’re really, really having a go at him all the time”.  He added that “harassing” was the best way to describe what had been happening.  The Deputy Traffic Commissioner then explained the scoring system, used by VOSA, to target vehicles for stopping and that as the Appellant’s vehicle had attracted prohibitions and had a high MOT failure rate it would be higher up the list.  Mr Fryer accepted that he was not familiar with the system, but then said: “Maybe they know how to work this system to, to harass these, these Polish chaps then, do they”?

(xviii)          There followed a series of exchanges in which it was seldom possible for the Deputy Traffic Commissioner to finish what he was attempting to say without being interrupted by Mr Fryer.  Many of the interruptions simply changed the subject so that the whole exercise was inconclusive.

(xix)             Mrs Riddell then gave evidence for the Appellant.  She said that she knew from her dealings with Mr Fryer that if he is required to do something to a vehicle and he thought that it was right then he will get on and do it.  On the other hand she said that he reacts angrily if he feels that something is not just, hence his reaction to the suggestion of a formal warning, which he did not feel that he deserved.

(xx)               The Deputy Traffic Commissioner gave a written decision dated 20 April 2012.  He set out the evidence and the background, which we have summarised above.  In paragraph 7 he said this:-

“My concern at the time of the October public inquiry was that the operator appeared to have very little insight into the reasons for his lack of compliance and the seriousness of the position in which prohibitions were accrued and in which vehicles never passed their MOT first time.  It seemed to me that whilst there was evidence of some attempts to try to get things right, the evidence put forward was dominated by excuses including poor weather conditions and the rough terrain because of the nature of the farm properties visited.  My personal note at the time was concerned with my belief that Mr Fryer was spending undue amounts of time concentrating on what were perceived by him to be injustices against his business, when his efforts might also be directed at looking forward and ensuring that his systems were suitable for the 21^st century”.

(xxi)             The Deputy Traffic Commissioner explained that he had taken the unusual course of giving a written decision to issue a formal warning for two reasons.  The first was because of the vigorous way in which Mr Fryer had argued against that course and the second was in an attempt to explain the logic lying behind the decision.

(xxii)            He referred to the prohibitions, pointing out that none was ‘S’ marked, though there were safety implications arising from the defects.  He agreed with the Vehicle Examiner that the nature of the prohibitions was such that they were preventable with greater attention to maintenance and more diligent walk-round checks.  He said that first time MOT failures gave him no real confidence that vehicles were always in a fit and serviceable condition.  He took account of Mr Fryer’s explanation of the most recent first-time MOT failure.  He pointed out that maintenance had been brought ‘in-house’ without notice to the OTC.  He noted the allegations of discrimination, pointing out that they were serious allegations, which, if proved, would affect his view of the case.  However he said that he had only been told of generalised allegations of discrimination and that he could not find evidence that discrimination had affected the results of the MOT tests, (conducted by different staff), or the issuing of prohibitions, (by different Vehicle Examiners).

(xxiii)           On that basis the Deputy Traffic Commissioner concluded that there were no grounds for taking action under s. 27 Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] nor was the evidence sufficient to make adverse findings about the repute of the transport manager.  However he concluded that there were grounds for taking action under s. 26 of the 1995 Act because a number of the grounds listed in s. 26(1) had been made out.  He accepted that the absence of prohibitions meant that some progress had been made.  Nevertheless he continued to have concerns that the Appellant might be distracted from assuring that it achieved complete compliance because of a pre-occupation with perceived unfairness to it.

(xxiv)          The Deputy Traffic Commissioner concluded that the undertakings imposed at the conclusion of the October 2011 Public Inquiry should remain in force but should be coupled with a formal warning as to future compliance.  The Deputy Traffic Commissioner took the view that this was the proportionate response to the circumstances before him.

(xxv)            The Appellant appealed against that decision by a Notice of Appeal dated 15 May 2012.  The main ground of appeal was that the Appellant was unfairly penalised, in all the circumstances, by being given a formal warning.

3.           Mr Joseph Fryer attended the hearing of the appeal to represent the Appellant.  He was accompanied by Mrs Riddell.  We were provided with a small bundle of documents, intended to stress the most important points to be made on behalf of the Appellant, for which we are grateful.

4.           Mr Fryer clearly felt aggrieved by the formal warning because he maintained that he had effectively done all that had been required by the Deputy Traffic Commissioner at the end of the Public Inquiry in October 2011.  He maintained that the Deputy Traffic Commissioner should have treated the most recent MOT failure as a first-time pass because the vehicle had been failed as a result of a misreading of the rules.  The impression we have, from reading the transcript, is that if Mr Fryer had permitted the Deputy Traffic Commissioner to finish what he was saying about this MOT test the Deputy Traffic Commissioner would have explained that it was a technical first-time failure, because the vehicle was re-submitted for a second test, but that he was not giving it the same weight as he would have done to a failure on the merits.

5.           Next Mr Fryer submitted that the law does not require that a vehicle passes the MOT test first time.  That may be so because the requirement is to have a valid MOT certificate if the vehicle is used on a road.  But this submission misses the main point which is that all operators who seek to operate compliantly will strive to ensure that their vehicles are maintained to a standard which will ensure a first time pass.  It has been said, with considerable force, that a vehicle is never likely to be in a better condition than when it is submitted for an MOT test.  It follows that Traffic Commissioners are entitled to have regard to first time failures because they act as a barometer of the way in which the vehicle in question is being maintained.

6.           Although we allowed Mr Fryer to tell us his concerns we had to alert him to the fact that he would need to persuade us that there was, in law, a right to appeal a decision to impose a formal warning.  The Tribunal can only do what Parliament has permitted it to do. One of the things that the Tribunal is permitted to do is to hear appeals from decisions made by Traffic Commissioners.  This right is set out in s. 37 of the 1995 Act.  Sub-section (1) of s. 37 provides for an appeal against a refusal to grant or to vary and operator’s licence, so it does not assist the Appellant.  Sub-section (2) provides for an appeal against any direction under a number of sections of the 1995 Act.  The only section mentioned in s. 37(2) which is relevant to this appeal is s.26(1).  That sub-section gives the Traffic Commissioner, by whom a licence has been issued, the power to ‘direct that it be revoked, suspended or curtailed’ on any of the grounds set out.  We have underlined the word ‘direction’ in our summary of s. 26(2) because the issue of a formal warning does not involve any of the ‘directions’ which a Traffic Commissioner can give under s. 26(1) of the 1995 Act.  It follows that there is no right of appeal under s. 37(2) against a formal warning.  Sub-section (3) of s. 37 grants a right of appeal against orders made after the suspension or curtailment of the licence.  Since this licence was not suspended or curtailed this provision cannot assist the Appellant.  Sub-section (4) deals with appeals against disqualification, it is therefore irrelevant to this appeal.  Sub-section (5) of s. 37 gives a right of appeal to those who have made a valid objection to the grant or variation of an operator’s licence.  Once again this does not assist the Appellant.  Sub-section (6) gives a right of appeal, in certain circumstances, where there had been an application for a review under s. 36 of the 1995 Act, that section deals with the right to review a decision, which is not a point which arises in the present appeal.  For these reasons we are satisfied that there is no right to appeal against a decision to issue a formal warning against an operator.  It is important to remember that a formal warning does not prevent an operator from continuing to operate with the same number of vehicles.  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.

7.           Even if there had been a right of appeal we doubt whether the Appellant would have been able to persuade us that the decision was plainly wrong.  We endeavoured to explain to Mr Fryer that the Appellant’s response to what was required after the October 2011 Public Inquiry had avoided the need for the licence to be suspended or curtailed, hence the fact that the Deputy Traffic Commissioner did not take either of those courses; but that it was still necessary to mark the unsatisfactory situation which led up to that Public Inquiry, hence the formal warning.  We share the concerns expressed by the Deputy Traffic Commissioner in the passage we have quoted at paragraph 2(xx) above.  In our view they provide additional justification for the decision that the Deputy Traffic Commissioner reached.

8.           Mr Fryer’s concern about discrimination was very evident in the course of the hearing.  Allegations of discrimination are serious matters that require correspondingly clear proof.  We agree with the approach of the Deputy Traffic Commissioner and that clear proof was not provided in the course of the Public Inquiry, especially in relation to prohibitions where it was only on some occasions on which prohibitions were issued to vehicles which had been stopped.  In any event Mr Fryer’s expectations were unrealistic.  Neither the Deputy Traffic Commissioner nor the Tribunal have any right to specify the way in which an MOT test or a roadside check is to be conducted nor are they equipped to conduct any general investigation as to whether or not discrimination has occurred.  Nor can the Deputy Traffic Commissioner or the Tribunal determine which vehicles are to be stopped by a Vehicle Examiner.  Any attempt to change the way in which roadside checks or MOT tests are conducted, with a view to avoiding or preventing discrimination, must be directed to the person with overall responsibility for VOSA and the person with overall responsibility for MOT test, if it is not the same individual.  We would simply say that if such concerns are to be raised they must be supported by clear and unequivocal evidence of discrimination.  General accusations, assumptions or assertions will not suffice.  In our view the Deputy Traffic Commissioner adopted the correct approach when he indicated that if it was proved that discrimination featured in a particular decision to fail a vehicle submitted for an MOT test or to issue a prohibition to a vehicle stopped at the roadside that would be something which would require him to look carefully at the weight to be given to such an MOT failure or such a prohibition.

9.           For all these reasons the appeal is dismissed with immediate effect.

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

10 September 2012