Neutral Citation Number: [2011] UKUT 181 (AAC)
Appeal No. T/2010/80
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Joan Aitken
Traffic Commissioner for the Scottish Traffic Area 
Dated 12 October 2010

Before:
Frances Burton, Judge of the Upper Tribunal
                                 Patricia Steel, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:
			BLUE BUS LIMITED

	 
Attendances:

For the Appellant:          Mr D Law, Director

Heard at:	The Eagle Building, 215 Bothwell Street, Glasgow G2 7EZ
Date of hearing:	25 March 2011
Date of decision:	25 April  2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED in part, in that the penalty imposed by the Traffic Commissioner be reduced to £150 per vehicle, i.e. £1,050 in total, payable by 1 June 2011

REASONS FOR DECISION

1.	This was an appeal from the Decision of the Traffic Commissioner for the Scottish Traffic Area dated 12 October 2010 when, under s.39 of the Transport (Scotland) Act 2001, she directed that a penalty of £500 for each disc in possession (7 x £500, a total of £3,500) was payable to the Scottish Government by 30 November 2010.
2.	The factual background appears from the documents, the transcript of the public inquiry and the written Decision of the Traffic Commissioner and is as follows.
(i)	The Appellant company has held a Standard National PSV operator licence since 22 June 2004, currently authorising 7 vehicles operated from 300 Mill Road, Shotts, ML7 5DG, and the Directors of the operator company were Mr Drew Law and Mrs Deborah Law. Mr Drew Law was also the operator’s Transport Manager.
(ii)	Following an adverse bus monitoring report a warning letter was issued on 7 November 2007. Following an adverse maintenance inspection another warning letter was issued on 20 January 2008.  Following another bus monitoring report (in respect of monitoring of  5 local services over 7 days between 28 April 2010 and 17 May 2010)  a non compliance rate of 40.67% was recorded and a letter was sent on 18 May 2010 requesting comments, which  the operator sent on 11 June 2010. On 13 August 2010 the company was called to a public inquiry, to consider whether or not the Traffic Commissioner should exercise her powers under s 17 (1) and (2) of the Public Passenger Vehicles Act 1981 as amended, to revoke, suspend or vary any condition on the licence or to attach any additional conditions, owing to the operator’s failure to fulfil undertakings.  The operator was also called under s 26(1)(a) in respect of failure to operate a local service.   
(iii)	The public inquiry took place at Edinburgh on 12 October 2010.  For VOSA, Mrs C Riley, Bus Compliance Officer, attended and for the Operator, Mr Law and Mr D Myres, Operations Manager. Mrs Riley spoke briefly to her report in answer to questions from the Traffic Commissioner, asking her to confirm its content, and Mr Law gave evidence at greater length, representing the company without the assistance of a lawyer, although he said that he had taken legal advice from his lawyer, Mr McAteer.   However according to the transcript the entire public inquiry took only 44 minutes and the Traffic Commissioner then gave an oral decision which forms part of the official transcript.  A signed note of the oral decision was then supplied by the Traffic Area Office. 
(iv)	During the course of the public inquiry the Traffic Commissioner criticised Mr Law for failing to notify her when he had been appointed an additional Director with Mrs Law some 2 years previously, pointing out that this needed to be notified at the time of the occurrence, not significantly later.  Mr Law, having accepted the Bus Compliance Monitoring Report on observations from 28 April to 17 May 2010, then explained the mitigating circumstances in respect of each of the non compliant services which the bus monitoring had found. He first explained that on two of the services (702 and 721) the Appellant company had already picked up that there were driver issues before the monitoring had begun. However there had been one driver (David Anderson on service 72) who had been dismissed on 12 May 2010, as he had actually left the service route to take his lunch at home and to engage in other personal activity, instead of adhering to his route and timings, for which he had coincidentally been reported to the Appellant company by Mr Myres’ mother in law, who had been the passenger who had been refused entry to the bus. The other two drivers (the Penrices) had been father and son, the father first being sacked on 9 April 2010, and the son actually resigning, but already in line for dismissal, had he not left beforehand on 25 May 2010. 
(v)	Mr Law had then explained the role of roadworks in the other non compliant services such as the 77 (Lanark to Livingston via Cleghorn) on which he said that when he had driven this service he had sometimes had to sit for 20 minutes at a level crossing.  As a result drivers on that service had not had time to go to Breich as they should have done but had had to go back to Lanark so as to be on time there.  Mrs Riley was, however, not able to confirm or contradict these explanations.  With regard to the 701 Mr Law explained that as a result of road works in the Cambusnethan area there were delays which he attempted to deal with by a re-registration on 6 May 2010 which did not work, so two weeks later another was introduced which prevented further problems.
(vi)	In response to questioning from the Traffic Commissioner Mrs Riley said that she had no information to contradict Mr Law’s evidence as to the road works or level crossing delays.
(vii)	The Traffic Commissioner had then called a short adjournment before giving her oral Decision in which she set out the Appellant company’s history. She referred to the Bus Compliance Officers’ full report in which they had found 5 services respectively running early, late or failing to operate, and on which she commented that the operator had had the report before the public inquiry and had had the opportunity to comment upon it which he had done.  She set out the services which had been monitored: (1) the 72, Shotts to Livingston, monitored on 39 journeys with 16 early , 1 late, 2 failures to operate at all and 1 off route; (2)  the 71, Carnwath to Livingston, monitored on 20 journeys, of which 1 was early, 2 late and 4 failures to operate; (3) the 77, Carnwath to Livingston, monitored on 30 journeys, of which 9 were early, 2 late and 4 failures to operate; (4) the 702, Wishaw to Livingston, monitored on 38 journeys, of which 9 were early and 4 late, on this route a partial check had revealed no road works. (5) the 701, Wishaw to Livingston, monitored on 38 journeys, of which 2 were early and 12 late.  She said that the Appellant had blamed the drivers, 2 of whom had been sacked and the other resigned.  The off route driver had been detected by a passenger complaint.   The 701 and 702 had experienced some “tit for tat” behaviour by a competitor but the drivers had been told that running early would generate disciplinary action.
(viii)	The Traffic Commissioner had accepted that road works had affected some journeys, and that the operator had addressed this with provision of a spare bus and driver, and in addition had done this where there were works (which were actually on the railway line not the road) but which had affected the time taken to cross at a level crossing.  She had also noted that there was one school contract but otherwise the operator only ran exceptional private hire contracts and had no plans to expand. At the end of the hearing she said “So you go away with your licence intact, Mr Law, but with a warning ringing in your ears and a wee bit of financial penalty…”
(ix)	The Traffic Commissioner had then recorded that Mr Law had stated that the Bus Compliance report was accurate but had wanted to make mitigating submissions, nevertheless she had been pleased to record that he had not attempted to evade responsibility for the failings recorded.  She had ended up by confirming that she was satisfied that Mr Law was taking the matter seriously and that she would be able to trust him in future so that she could draw back from any direct action against the licence, but that she could not ignore the failings and therefore imposed the financial penalty of £500 per vehicle. 
3.	At the hearing of the appeal the Appellant company was represented by Mr Law.
4.	Mr Law told us that the Traffic Commissioner had not recorded nearly all of what he had said at the public inquiry, where he had represented the company without a lawyer.  He considered that she had not really taken account of the reasonable excuses which he had advanced.  The sacking of the 2 errant drivers had been in place 3 weeks before the monitoring although they had not actually left until after VOSA had finished monitoring (but before they had reported). He said his buses had also not been helped by the delays at the level crossing, in respect of which he had been in contact with Network Rail. Road works had also affected all major roads in South Lanarkshire. With regard to the early running he said that the two drivers whose services had been terminated had just done what they liked, although he conceded that it was 3 months before what they were doing had been discovered.  He added that the company was a small one and he had to do some of the driving himself, however this enabled him to see what other drivers were doing. In answer to our questions Mr Law said that if the monitoring was done “today” no fault would be found. 
5.	Mr Law submitted that while Route 77 was badly affected by the rail works, it was also covered by 4 or 5 other operators, so that when his buses could not do so there was no great problem, although he conceded that this was a planning failure.  He had in fact had 4 failures in as many days so he had cancelled the registration.  He contended that this therefore did not disadvantage the travelling public, although he conceded that he had not told the Traffic Commissioner or VOSA. He insisted that the rail works were the cause of trains having a very slow speed limit which had been the reason for the extended closure of the level crossing. 
6.	We asked Mr Law if there was anything in the Decision which was incorrect or unfair, and he replied that there was as the Traffic Commissioner had taken the view that it had taken VOSA intervention to get him to “get his act together” which was wrong, and she had also not acknowledged his reasonable excuses nor mentioned them and his driver problems in her Decision.  We asked him what fine he had expected, to which he replied that the fine imposed was large for a small company as he had a large weekly wage bill, a £2,000 per week bill for fuel, another of the same size for drivers and other substantial overheads.
7.	We reserved our Decision and took time to consider the impact of the fine imposed by the Traffic Commissioner, about which it appeared that the Traffic Commissioner had not asked Mr Law.  We took the view that £500 per vehicle, total £3,500, was a very heavy fine for a small company.  We noted that there were elements of the Appellant company’s performance for which the Traffic Commissioner had not given credit in the final result although she had mentioned them in the Decision. Moreover Mr Law was dealing with his staff problems at the time of the monitoring and Mrs Riley had no evidence to contradict his reasons for delays during the monitoring period. We were of the view that £150 would be a sufficient penalty and in fact considering the size of the operation that this would be more than adequate for the Appellant company’s transgressions. 
8.	The Tribunal therefore determines that the appeal shall be allowed to the extent that the fine imposed by the Traffic Commissioner shall be reduced to £150 for each vehicle in possession, ie £1,050 in total, and that this sum shall be paid by 1 June 2011.  

Frances Burton
Judge of the Upper Tribunal
25 April 2011