Deborah Marie Toner T/A DDT Haulage v Head of the Transport Regulation Unit

Background

The Appellant is the holder of a standard international goods vehicle operator’s licence authorising 4 vehicles and 10 trailers.

The Appellant attended a public inquiry on 19 May 2021 where the Head of the TRU made the following relevant findings, notified to the operator by way of a letter dated 03 June 2021.

The Head of the TRU applied the following undertakings on the licence for Deborah Marie Toner:

On 10 June 2021 the Department received notice of appeal against the decision which placed conditions on the Appellant’s operator's licence. The suspension, disqualification, and period of grace were not appealed. The Appellant also applied for a stay "as regards the conditions placed upon her operator's licence, pending the outcome of this appeal". That request for a stay was refused by the Department on 14 June 2021. Subsequently a stay request was submitted to the Upper Tribunal and refused by Judge Hemingway on 9 August 2021.

An application to add a new Transport Manager, Mr A McP, dated 15 July 2021, was received on 23 July 2021. The application was incomplete, and in line with standard procedure a letter was issued on 12 August 2021 requesting further information. A further, and final request for the provision of outstanding information was issued on 7 September 2021. Whilst a response was received from Mr McP this was followed on 30 October 2021 by a notice that he was not proceeding with the application process and asked that he be withdrawn with immediate effect.

Mr McP was never formally recorded as a Transport Manager against the Appellant’s licence and the undertaking, therefore, remained outstanding.

On 9 November 2021, the Department served notice that it was considering revoking the licence held by the Appellant. That letter sought a response, and provided an opportunity to request a public inquiry, not later than 30 November 2021.

A response was received from the Appellant’s solicitor on 29 November 2021 which included:

On 6 December 2021 the Department wrote to the Appellant, stating, inter alia:

The Appeal against the Department's decision of 3 June 2021 to apply undertakings against the licence was heard on 8 December 2021. The appeal was disposed of by way of a Consent Order whereby the Upper Tribunal ordered that undertakings a & b (in paragraph (iii) above) were to be remade as follows:

As a consequence of the outcome of the appeal held on 8 December 2021 the Head of the TRU wrote to the operator on 15 December 2021 as follows:

On 20 January 2022 the operator wrote to the Department enclosing an application to add transport manager Mr Hugh Toner. The Department considered the application to be incomplete and, accordingly and in line with standard procedure, wrote to the Appellant on 26 January 2022 requesting the following additional information:

By way of email correspondence dated 11 February 2022, the Department referred to undertaking b (as noted in paragraph (iii) above) and requested details as to compliance with it.

The Appellant replied on 11 February 2022 to indicate that she had been unwell but would answer the queries which had been made on her return to the office.

In correspondence dated 14 February 2022, the Appellant made the following responses:

On 2 March 2022 the Department considered that application remained incomplete and, in line with standard procedures, issued what it considered to be a final request for the following information which was to be received not later than 16 March 2022:

In correspondence dated 16 March 2022, the Appellant made the following response:

On 12 April 2022 the Department wrote to the operator to provide what it described as a further and final opportunity to provide the outstanding documentation not later than 26 April 2022. This letter concluded by stating that no further extensions would be granted.

As no response was received to the Department's 26 April letter, in accordance with section 26(1) the Department wrote to the operator on 18 May 2022 to advise that it was considering making a direction to revoke the operator's licence. The reasons given for the proposed direction were as follows:

On 8 June 2022 the Department received email communication from (the Appellant) advising that she had received the 26 April letter but had not received the previous letter dated 12 April 2022. The Department responded on the same day, by email, providing a copy of the 12 April letter. No further communication was then received from (the Appellant).

In correspondence dated 17 June 2022 the Department informed the Appellant of its decision to revoke her operator’s licence. The content of that decision letter is set out in more detail below.

An appeal against the decision dated 17 June 2022 was subsequently received in the office of the Administrative Appeals Chamber of the Upper Tribunal.

The notice of Appeal included an application for a stay of the effect of the decision dated 17 June 2022. On 4 July 2022 the stay application was refused by the Head of the TRU. The stay application was renewed before the Upper Tribunal and on 11 July 2022, was granted by Upper Tribunal Judge Hemingway.

The decision notice

‘I refer to our letter of 18 May 2022 proposing to revoke your operator's licence due to an apparent failure to comply with a licence undertaking and to meet the professional competence requirement as a result.

The Department considers that you have failed to continue to meet the requirements for holding an operator's licence and has decided to revoke your licence with immediate effect under the provisions of Sections 23 and 24 of the 2010 Act on the following grounds:

Section 23(1)(e) that any undertaking recorded in the licence has not been fulfilled, namely, the operator is required to employ an external Transport Manager who is not Mr Damian Toner. As required by the legislation, the name of the proposed Transport Manager is to be forwarded to the Head of the TRU for his approval by 31 January 2022

Section 24(1)(a) as the licence holder no longer satisfies the requirement to be of professional competence under the provisions of section 12A(2)(d) (as determined in accordance with regulations and Article 8 of the 2009 Regulation) in view of an apparent failure to provide evidence to ensure compliance with the undertaking to add an external transport manager to the licence.

The decision was made by the Head of the Transport Regulation Unit and his findings are below:

‘The Appellant Ms Deborah Marie Toner applies for leave to appeal and to appeal the Decision of 17 June 2022, which revokes her Operator's Licence. The basis for this application is that the decision-maker has made an arbitrary, unlawful and entirely disproportionate decision as regards the revocation of our client's Licence.

The decision-maker has had to artificially conjoin two of the statutory requirements in order to come to an entirely unjustifiable decision to revoke our client's Operators Licence without providing for a winding down period.

The artificiality of the decision can be seen on the face of the letter dated 17 June 2022 where the decision-maker notes that regulatory action under Section 23(1) is discretionary whereas that under 24(1) is mandatory. The decision-maker obviously cognisant of this fact uses a purported-breach of undertaking under Section 23(1) to ground a finding of breach of Section 24(1) hence professing to be obliged to revoke the Operator's Licence.

This is an obvious and artificial construct to attempt to justify an immediate revocation of our client's Licence. Without prejudice to the above, the direction given by the Upper Tier Tribunal in the case NT/2021/50 was that the Operator nominate a Transport Manager who is not Mr Damian Toner. This direction was complied with fully by the Operator.

The Appellant Operator states that it is no coincidence that the revocation of her Licence has occurred with a direction to return all documentation by Friday 1 July 2022, given the comment made by the Judge of the Upper Tier Tribunal indicating that she herself would be able to apply to become Transport Manager at the end of the period of her loss of repute which of course would be l July 2022.

The Operator states that it should be obvious on the face of this decision that the intention is to revoke her Licence and to prevent her from making such an application in her own right as was suggested by the Upper Tier Tribunal.

In all of the circumstances we believe that the decision to revoke the Licence is without proper lawful or factual basis and should be struck down.’

‘25. The grounds for appeal, summarised at paragraph 22 above, submit that a decision was arbitrary, unlawful and entirely disproportionate, but offers little grounds or evidence to support this. The appeal relies on an assertion that I have artificially conjoined two statutory requirements. In fact these are two separate findings. The point is being made, and clearly noted, that whilst one of those findings allows the Department to consider revocation, the other (under provisions of section 24) directs that the Department shall revoke an operator's licence.

The appeal goes on to state that the direction of the Upper tribunal was "that the operator nominate a Transport Manager who is not Mr Damien Toner" and that this was complied with. In fact the direction from the Upper Tribunal was that – in line with standard procedure - the name of the proposed Transport Manager is to be forwarded to the Head of the Transport Regulation Unit for his approval by 31 January 2022. Only those approved by the Department can be listed as a Transport Manager, and in this instance neither of the two proposed Transport Managers could be approved as the operator failed to complete the application process on each occasion.

I also fail to understand the relevance or logic of the inference that this process was timed to correspond with a date of 1 July, at which point Mrs Toner would be able to apply in her own name to be a Transport Manager. It would be for the Upper Tribunal to determine whether delaying until July 2022 was the operator's intention, and perhaps this might explain the relaxed approach taken to the completion of the previous two nominations, but in truth Mrs Toner's twelve-month disqualification commenced from the notice of the Department's decision which was 3 June 2021. The disqualification of Mrs Toner expired two weeks before the decision to revoke the licence. The direction to return the licensing documentation is standard wording used by the administrative team and is not part of my direction on revocation.

The facts of this case are simply, despite the long background, that the operator failed to meet the ongoing and mandatory requirement to satisfy the Department that it meets the professional competency requirement. This was despite previous notice, a clear direction from the Upper Tribunal, and a patient and lenient approach from the Department during protracted, but incomplete, application processes.

To allow a stay would be seen as condoning the continuation of an operation which, in my view, is clearly in breach of the legislative requirements in terms professional competency. Professional competency is vital for assurance that transport operations are being appropriately and effectively managed. Failure to do so can create risk to road safety and creates an unfair playing field as others spend money to obtain their own qualification or hire in such expertise. In considering this request to stay this decision I note that I have no information as to how transport operations are being, or have been managed.’

“Standard” and “restricted” licences

On an application for a restricted licence the Department must consider—

Subsections (1) and (2) are subject to sections 10 (publication of application) and 47(2) (payment of application fee).

In considering whether any of the requirements of sections 12A to 12D are satisfied, the Department must have regard to any objection duly made under section 11(1)(a) in respect of the application.

If the Department determines that any of the requirements that it has taken into consideration in accordance with subsection (1) or (2) are not satisfied, it must refuse the application.

any direction under section 16(1)(a) that a maximum number specified in a licence under section 5 be increased;

any direction under section 16(1)(c) or (e);

any direction under section 16(1)(g) that a new place be specified in a licence as an operating centre of the licence-holder; and

any direction under section 16(1)(h) or (i) which might result in a material change in the use of any operating centre of the licence-holder.

This subsection has been complied with in respect of a locality affected by an application if, within the period beginning 21 days before the date on which the application is made and ending 21 days after that date, notice of the application in such form and containing such information as may be prescribed has been published in one or more local newspapers circulating in the locality.

it is satisfied as mentioned in subsection (1), except that the form or contents of the notice of application as published in any newspaper did not comply with the prescribed requirements; and

it is satisfied that no person's interests are likely to have been prejudiced by the failure to comply with those requirements.

For the purposes of this section a locality is affected by an application for the variation of an operator's licence if—

23.— Revocation, suspension and curtailment of operators' licences

Subject to the following provisions of this section and the provisions of section 26, the Department may direct that an operator's licence be revoked, suspended or curtailed (within the meaning given in subsection (9)) for any reasonable cause including any of the following—

…

24.— Revocation of standard licences

The Department shall direct that a standard licence be revoked if at any time it appears to the Department that

‘Some General Principles

An operator’s licence can only be granted if the applicant satisfies the Department that the relevant requirements, set out in s. 12 of the 2010 Act as amended, have been met. [The expression Department is used in the legislation but for the purposes of the decisions required to be taken under the legislation it is the Head of the TRU who takes them]. The relevant requirements are now set out in Paragraph 17(5) of the Goods Vehicles (Qualifications of Operators) Regulations (Northern Ireland) 2012, (“the Qualifications Regulations), which substitutes a new s.12 and adds ss. 12A-12E to the 2010 Act. The Qualifications Regulations also contain important provisions in relation to Good Repute, Professional Competence and Transport Managers.

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 2010 Act and from Regulation 1071/2009 that these are continuing obligations, which an operator is expected to meet throughout the life of the licence. It is implicit in the terms of s. 23, which gives the Department power to revoke, suspend or curtail an operator’s licence, that this can take place at any time and for any reasonable cause, including matters covered by the requirements of s. 12 as amended. It is explicit in s. 24, which provides that a standard licence shall be revoked if at any time it appears that the licence-holder is no longer (i) of good repute, (ii) of appropriate financial standing or, (iii) professionally competent. The underlining, in each case is ours. First, we wish to stress that once it appears that the licence-holder is no longer of good repute, or of appropriate financial standing or professionally competent the licence must be revoked because the Act makes it clear that there is no room for any exercise of discretion. Second, the use of the expression ‘at any time’ makes the continuing nature of the obligations crystal clear.

The Tribunal has stated on many occasions that operator’s licensing is based on trust. Since it is impossible to police every operator and every vehicle at all times the Department in Northern Ireland, (and Traffic Commissioners in GB), must feel able to trust operators to comply with all relevant parts of the operator’s licensing regime. In addition other operators must be able to trust their competitors to comply, otherwise they will no longer compete on a level playing field. In our view this reflects the general public interest in ensuring that Heavy Goods Vehicles are properly maintained and safely driven. Unfair competition is against the public interest because it encourages operators to cut corners in order to remain in business. Cutting corners all too easily leads to compromising safe operation.

It is important that operators understand that if their actions cast doubt on whether they can be trusted to comply with the regulatory regime they are likely to be called to a Public Inquiry at which their fitness to hold an operator’s licence will be called into question. It will become clear, in due course, that fitness to hold an operator’s licence is an essential element of good repute. It is also important for operators to understand that the Head of the TRU is clearly alive to the old saying that: “actions speak louder than words”, (see paragraph 2(xxix) above). We agree that this is a helpful and appropriate approach. The attitude of an operator when something goes wrong can be very instructive. Some recognise the problem at once and take immediate and effective steps to put matters right. Others only recognise the problem when it is set out in a call-up letter and begin to put matters right in the period before the Public Inquiry takes place. A third group leave it even later and come to the Public Inquiry with promises of action in the future. A fourth group bury their heads in the sand and wait to be told what to do during the Public Inquiry. It will be for the Head of the TRU to assess the position on the facts of each individual case. However it seems clear that prompt and effective action is likely to be given greater weight than untested promises to put matters right in the future.’

‘There is a right of appeal to the Upper Tribunal against decisions by the Head of the TRU in the circumstances set out in s. 35 of the 2010 Act. Leave to appeal is not required. At the hearing of an appeal the Tribunal is entitled to hear and determine matters of both fact and law. However it is important to remember that the appeal is not the equivalent of a Crown Court hearing an appeal against conviction from a Magistrates Court, where the case, effectively, begins all over again. Instead an appeal hearing will take the form of a review of the material placed before the Head of the TRU, together with a transcript of any public inquiry, which has taken place. For a detailed explanation of the role of the Tribunal when hearing this type of appeal see paragraphs 34-40 of the decision of the Court of Appeal (Civil Division) in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ. 695. Two other points emerge from these paragraphs. First, the Appellant assumes the burden of showing that the decision under appeal is wrong. Second, in order to succeed the Appellant must show that: “the process of reasoning and the application of the relevant law require the Tribunal to adopt a different view”. The Tribunal sometimes uses the expression “plainly wrong” as a shorthand description of this test.’

At paragraph 4, the Upper Tribunal had stated:

‘It is apparent that many of the provisions of the 2010 Act and the Regulations made under that Act are in identical terms to provisions found in the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”), and in the Regulations made under that Act. The 1995 Act and the Regulations made under it, govern the operation of goods vehicles in Great Britain. The provisional conclusion which we draw, (because the point has not been argued), is that this was a deliberate choice on the part of the Northern Ireland Assembly to ensure that there is a common standard for the operation of goods vehicles throughout the United Kingdom. It follows that decisions on the meaning of a section in the 1995 Act or a paragraph in the Regulations, made under that Act, are highly relevant to the interpretation of an identical provision in the Northern Ireland legislation and vice versa.’

‘The Department considers that you have failed to continue to meet the requirements for holding an operator's licence and has decided to revoke your licence with immediate effect under the provisions of Sections 23 and 24 of the 2010 Act …’

‘Section 24(1)(a) as the licence holder no longer satisfies the requirement to be of professional competence under the provisions of section 12A(2)(d) (as determined in accordance with regulations and Article 8 of the 2009 Regulation) in view of an apparent failure to provide evidence to ensure compliance with the undertaking to add an external transport manager to the licence.

…

… I am reminded that in the case of a finding under Section 24(1)(a) the Department "shall'' revoke the licence, and this action is mandatory rather than discretionary.

This operator has had ample notice of the competency requirements - particularly as the necessity to have an external transport manager was reaffirmed by the Upper Tribunal - and has been given appropriate notice of the Department's proposal to revoke due to the failings. Revocation is therefore inevitable in this case. As I have received no submissions from the operator that might justify a delay in applying the revocation, to allow operations to be brought to an orderly close, I find immediate revocation of the licence in this instance, due to the absence of professional competence, as being wholly proportionate.’

‘Section 23(1)(e) that any undertaking recorded in the licence has not been fulfilled, namely, the operator is required to employ an external Transport Manager who is not Mr Damian Toner. As required by the legislation, the name of the proposed Transport Manager is to be forwarded to the Head of the TRU for his approval by 31 January 2022.

…

A finding under Section 23(1)(e) can include revocation, but this is discretionary and other options for regulatory action such as suspension or curtailment are available, but …

‘… I am reminded that in the case of a finding under Section 24(1)(a) the Department "shall'' revoke the licence, and this action is mandatory rather than discretionary.

This operator has had ample notice of the competency requirements - particularly as the necessity to have an external transport manager was reaffirmed by the Upper Tribunal - and has been given appropriate notice of the Department's proposal to revoke due to the failings. Revocation is therefore inevitable in this case. As I have received no submissions from the operator that might justify a delay in applying the revocation, to allow operations to be brought to an orderly close, I find immediate revocation of the licence in this instance, due to the absence of professional competence, as being wholly proportionate.’

‘The facts of this case are simply, despite the long background, that the operator failed to meet the ongoing and mandatory requirement to satisfy the Department that it meets the professional competency requirement. This was despite previous notice, a clear direction from the Upper Tribunal, and a patient and lenient approach from the Department during protracted, but incomplete, application processes.’