‘We note that you have referenced our client's appeal which is listed for the8th December 2021 and would ask that no action be taken that would compromise our client's licence or interfere with our client's appeal rights. To this end we would seek an extension to the grace period to allow our client to identify and engage a different transport manager". (ix) On6 December 2021 the Department wrote to the Appellant, stating, inter alia: ‘The decision to disqualify (the Appellant) as transport manager, and allow a period of grace until 30 July, was communicated on03 June 2021 . Requests to stay the decisions from the public inquiry were refused by both the Department and the Upper Tribunal. Article 13(1)(a) of Regulation (EC) 1071/2009 sets a limit of six months on any period of grace for professional competency (allowing an extension only in cases of death or incapacity which are not relevant in this case). That six-month limit expired on03 December 2021 and the period of grace cannot therefore be extended. In line with Section 24(1)(a) the department shall direct that a standard licence be revoked if any time it appears to the Department that the licence holder no longer satisfies the requirements of section 12A(2). The emphasis here is my own. This decision stands alone from the decision under appeal and is taken independently from it. I am therefore not persuaded that it interferes with the appeal rights of the licence holder. I therefore order that the licence is revoked 28 days from the date this decision is notified to the operator to allow an orderly closure of transport operations.’ (x) The Appeal against the Department's decision of3 June 2021 to apply undertakings against the licence was heard on8 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: a. 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 by31 January 2022 . b. The operator is required to enter into a maintenance contract with an external provider who is not Mr Damian Toner. As required by the legislation, the name of the proposed maintenance contractor is to be forwarded to the Head of the TRU for his approval by31 January 2022 .' (xi) As a consequence of the outcome of the appeal held on8 December 2021 the Head of the TRU wrote to the operator on15 December 2021 as follows: ‘Whilst the decision to revoke the licence was based on the absence of an approved transport manager and the expiration of the allowable period of grace, I note the clear direction from the Upper Tribunal to allow until31 January 2022 for a transport manager (and maintenance contractor) to be nominated. I am satisfied that the 6 December decision to revoke could (sic "not') have been reached with the new wording in place. In order to save the time and expense of appeal, and in agreement with you that the present decision is a nullity, I propose to now withdraw that direction to revoke.’ (xii) On20 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 on26 January 2022 requesting the following additional information: ‘A hard copy of the transport manager application form (TM(NI)1) form posted to the Leeds office. The nominated transport manager's certificate(s) of qualification. Modular certificates are not acceptable. The full certificate shows a place and date of birth and refers to EC Regulation 1071/2009. If full certificate has not been received by the transport manager, they should contact the examining body and ask for the full certificate. Please upload the full page of the overall certificate to the online transport manager application. Confirmation of the full legal name of the proposed transport manager as there is indication he has a middle name. The number of hours Mr Toner will dedicate to his undeclared sole trader licence, ON1114128. If Mr Toner's hours as a mechanic also include his hours as a transport manager for his sole trader licence, please confirm this when you respond to this letter. (xiii) By way of email correspondence dated11 February 2022 , the Department referred to undertaking b (as noted in paragraph (iii) above) and requested details as to compliance with it. (xiv) The Appellant replied on11 February 2022 to indicate that she had been unwell but would answer the queries which had been made on her return to the office. (xv) In correspondence dated14 February 2022 , the Appellant made the following responses: ‘I refer to your letter dated26th January 2022 . I have to apologise in advance for my late reply as I have been unwell and am only back in the office from Friday past,11th February 2022 . I reply as follows both by email & post. I attach/enclose a hard copy of Transport Manager application form (TM(Nl)l, I have amended the Transport manage application, page 3, no 7. Hugh Toner is the holder of another licence. I have amended same on the application. Mr Toner is unable to locate his Transport Managers Certificates at this time but has made contact with the examining body to ask for his full Certificate. Mr Toner's full name is Hugh Francis Toner. He [sic] Toner will dedicate 2.5 hours per day to his own Sole Trader licence.’ (xvi) On2 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 than16 March 2022 : ‘The application is still incomplete and this a final request. You must now give this matter your urgent attention and provide the following information/document(s): A hard copy of the transport manager application form (TM(NI) 1) form posted to the Leeds office. So far we only received an emailed copy. The nominated transport manager's certificate(s) of qualification. Modular certificates are not acceptable. The full certificate shows a place and of birth and refers to EC Regulation 1071/2009. If full certificate has not been received by the transport manager, they should contact the examining body and ask for the full certificate. Please upload the full page of the overall certificate to the online transport manager application. We note that your proposed transport manager has not been listed on a licence within the previous five years and may have attained their CPC qualification more than 10 years ago - (agreement was sought for the proposed transport manager to attend a refresher course) You are required to upload details of any professional development Mr Toner has undertaken since obtaining their certificate. This can take the form of refresher courses, training workshops, conferences and events, ore-learning programs. If they have undertaken any of these please provide evidence of attendance/completion. If your proposed transport manager is unable to provide this information you should confirm whether you would accept the following undertaking on the licence: By three months from grant of the application, Mr Hugh Toner will either: i) attend in person a two-day transport manager CPC refresher course ii) participate in a virtual online two-day transport manager CPC refresher course Courses must be run by a trade association (Logistics UK/RHA/BAR), a professional body (loTA/CILT/SOE/IRTE), or an exam centre approved by an accredited body to offer the transport manager CPC qualification in goods transport. Virtual online courses must satisfy the criteria for such courses established by the Department. Whether attending in person or participating in an online course, proof of attendance must be sent to the Department at the above address within seven days of completion. As Mr Toner's maximum declared weekly hours total is 54, please arrange for him to confirm whether he considers that as an external transport manager role and owner and transport manager of his own business, he is exempt from the Working Time Regulations or, if not, whether he will opt out of the Regulations if he is approved as transport manager for (the Appellant) (xvii) In correspondence dated16 March 2022 , the Appellant made the following response: ‘Referring to your letter dated2nd March 2022 regarding an application for the role of transport manager. *A hard copy of the TM(Nl)l has been posted to the relevant address stated on your previous letter. *We have requested a copy of Mr Hugh Toner's transport certificates of qualifications, which I will forward to yourself as soon as I receive them. *Mr Hugh Toner has agreed to participate in a virtual on-line two day transport manager CPC refresher course.’ (xviii) On12 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 than26 April 2022 . This letter concluded by stating that no further extensions would be granted. (xviii) As no response was received to the Department's 26 April letter, in accordance with section 26(1) the Department wrote to the operator on18 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: ‘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 by31 January 2022 . Section 24(1)(a) as the licence holder no longer appears to satisfy 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 refer to our letter of18 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 by31 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: In this case we have previously provided some leniency due to an appeal being heard by the Upper Tribunal, and an agreement between the Department and the operator to have the undertakings amended by way of a consent order. The impact of this consent order was to adjust two of the undertakings so that they read as follows: 'a. 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 by31 January 2022 . b. The operator is required to enter into a maintenance contract with an external provider who is not Mr Damian Toner. As required by the legislation, the name of the proposed maintenance contractor Is to be forwarded to the Head of the TRU for his approval by31 January 2022 .' As at31 January 2022 no external transport manager was approved by the Department, but leniency was granted as the process, delayed by the appeal, had commenced. As of today, however, the situation is rather stark. Due to the failure of the operator to provide supporting material the TM application has been refused. A final letter requesting information was issued on12 April 2022 , and a subsequent letter proposing to revoke the licence was issued on18th May 2022 . Evidence of delivery was obtained and, further, an email copy was issued at the operator's request. The letter proposing to revoke the licence specified 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 by31 January 2022 . Section 24(1)(a) as the licence holder no longer appears to satisfy 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. 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 Appellant Ms Deborah Marie Toner applies for leave to appeal and to appeal the Decision of17 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 dated17 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 Friday1 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. 26. 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 by31 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. 27. 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 was3 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. 28. 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. 29. 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.’
‘Some General Principles 10. 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. 11. 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. 12. 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. 13. 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.’
‘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 theGoods 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.’
‘… 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.’