Judge finds TC Turfitt misinterpreted Acquired Rights law

 

An operator has won an appeal against the finding that she had lost her professional competence after a judge found the traffic commissioner (TC) had misinterpreted the law around Acquired Rights certificates.

East of England TC Richard Turfitt found that O-licence holder and transport manager Patricia Bakewell, who trades as PP Haulage, lost her repute as her Acquired Rights certificate could no longer be relied upon. She was also given a formal warning and a period of four months to find a replacement transport manager.

Turfitt was also concerned that Bakewell did not have sufficient control over the business, as she lived in Turriff, Aberdeenshire, while the operating centre was in Nuneaton.

Bakewell was called to a public inquiry (PI) last year after the truck she operated was stopped by the DVSA in 2014. The driver was found to have driven without his digital card inserted into the tachograph unit across two dates.

A letter from the TC in 2015 advised Bakewell that he was considering revoking her O-licence as she no longer had stable and effective establishment and was no longer of good repute.

Bakewell’s solicitor responded to the TC’s letter, stating that she had been in the haulage industry for more than 50 years and was careful to observe the rules. She downloaded the vehicle’s tachograph records herself and dismissed the driver when she had found out what had happened.

At the PI last October, Bakewell said she put proactive systems in place to monitor the operation on a daily basis when she moved to Turriff. She said a DVSA officer had been satisfied with these arrangements.

However, the TC was also concerned that she should not have qualified for an Acquired Rights certificate in 2011 as she had not continuously managed a haulage business for a 10-year period before December 2009, as required by EU law. He found a gap in her experience between September 1998 and August 2004.

Bakewell’s solicitor disagreed with the TC’s interpretation of the law, and stated that it was not necessary for Bakewell to have been nominated as a transport manager on an O-licence for the 10-year period, as long as she had been involved in the management of the transport operation.

Upper Tribunal judge Marion Caldwell agreed that the TC appeared to have “erroneously” interpreted the law, and said it was not a case of Bakewell having obtained her Acquired Rights certificate by deception.

“The Tribunal feels, that whilst not ideal, she has shown that she can achieve continuous and effective management of the operation in light of the fact that she only has one vehicle and one customer; she speaks by telephone to the driver every day and physically sees the driver and vehicle at least once per week,” the judge said.

Caldwell also recommended that the TC remove the formal warning given to Bakewell from her record.