Decision delay "tainted the reasoning of the Head of the TRU", Upper Tribunal finds
The Upper Tribunal has found that an almost six-month delay in coming to the decision to revoke an Amagh-based haulier’s O-licence and ban its transport manager had an impact on the judgement’s validity.
Tassagh-based Damian Toner was found to have lost his repute and was banned from acting as a transport manager for 12 months earlier this year. As he was the sole CPC holder on the licence, which is in his name, the O-licence was also revoked.
The head of Northern Ireland’s Transport Regulation Unit (TRU) came to the decision in January following a public inquiry (PI) last year. The hearing was told about numerous tachograph and drivers’ hours infringements, and roadworthiness and vehicle weight offences.
Three compliance audits were carried out after a previous PI in 2013. A final report indicated that whilst improvements had been made in some aspects of its compliance systems, there had been no improvement in areas such as drivers’ hours compliance.
“Given the number of times he has been advised of failings and that prohibitions have also been received in the intervening period, the Department finds that it cannot have trust that compliance in this regard will now be achieved within a short period,” the Head of the TRU, Donna Knowles, said in her decision.
She added that Toner had been “entirely ineffective” in managing his drivers and attempted to pass the blame on to them at the hearing.
In his appeal to the Upper Tribunal, Toner’s solicitor argued that the Head of the TRU took too long to come to her decision, which was enough to render it ineffective.
Judge Kenneth Mullan noted that the Head of the TRU said she would try to issue a decision within 28 days. However, it took more than five months for a decision to be reached.
The judge said: “Looking at the substance of the decision itself, it is not that complex and, by the time the decision had been made, did not raise overtly difficult, challenging or novel issues.”
He said that the Head of the TRU would not have had significant concerns for public safety if Toner was allowed to continue operating for several months.
“We are of the view that the delay has had an impact on the validity of aspects of the decision… the delay has tainted the reasoning of the Head of the TRU as to the manner in which the case should be disposed of,” he added.
Toner also argued that the Head of the TRU should not have taken DVSA evidence into account as it was not admissible in Northern Ireland. However, the judge disagreed with this.
The judge gave the business three months from his decision on 29 August to remove Toner (as a transport manager) from the O-licence, or face revocation. It was also given six months to allow the Driver and Vehicle Agency to carry out a compliance audit.
Toner must complete a two-day transport manager refresher course before he can apply for the 12-month disqualification to be lifted.
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