Traffic commissioners (TC) play an important role in keeping the haulage industry safe and legal. But while most operators welcome the job they do for the sector, sometimes hauliers may disagree with the decisions they make or the way they have handled a case.
Complainants could be haulage bosses who are aggrieved at having their company’s O-licence revoked at a public inquiry; drivers upset that their HGV driving entitlement has been suspended; or transport managers who dispute the judgement that they’ve lost their repute.
While concerned parties are entitled to have their say if they believe a TC has made an error of judgement at a hearing, it’s important that they follow the correct procedure to appeal a decision or make a formal compliant about a TC’s conduct.
A case involving a PSV operator last year highlighted what is at stake if an operator ignores official procedures and takes the matter into their own hands. Blackpool bus operator Philip Higgs, who trades as Catch22 Bus, was disqualified from holding a PSV licence for a year after he posted a video online that allegedly showed former senior TC Beverley Bell committing driving offences.
Higgs, who was aggrieved at the long-running legal process which resulted in his application being heard at several hearings in front of Bell, hired a private investigator to film Bell whilst she was driving. This led deputy TC John Baker, to whom the case was referred, to find that he could not be trusted to follow PSV licensing requirements.
So what is the correct procedure to follow if an operator has an issue with the way its case is being handled, or wants to dispute the way a TC has considered evidence?
If an operator does not feel the TC has come to a fair decision following a PI, it can lodge an appeal with the Upper Tribunal. However, road transport solicitor Laura Newton warns operators to consider this option carefully, as it can be time consuming and costly.
“In some instances, it may be possible to simply go back to the traffic commissioner to deal with the decision in a new way, such as a new operator licence application for example, with new evidence and addressing the traffic commissioner's concerns,” she says.
Tim Ridyard, road transport solicitor at Ashtons Legal, says that the number of appeals made to the Upper Tribunal by hauliers is relatively low, with a very low rate of success.
“The operator may well feel aggrieved, but is the grievance that the decision was unfair, unreasonable or unbalanced, or is it just the wrong outcome for the operator?”
“The operator may have experienced a rough ride when questioned by the TC about management of their licence. A TC would regard in-depth questioning of an operator as part and parcel of ensuring close scrutiny of the operator and whether the answers being given are truthful,” he tells CM.
Ridyard explains that correspondence from the Office of the Traffic Commissioner (OTC), perhaps refusing an increase in fleet authorisation or an O-licence application, always informs operators that they have the right to appeal.
While there is a clear avenue to take a complaint against a TC’s decision, complaints about a TC’s alleged conduct are a little more complicated. Hauliers could take their issue to the OTC or senior TC as a starting point, and should consider contacting the DfT if their issue is not adequately resolved by these parties.
Ridyard says: “If the operator felt the traffic commissioner’s conduct was not acceptable to [the operator] in a more extreme way, then this could also be part of the appeal process. A former TC was once the subject of an appeal in the case of EA Scaffolding, where there were allegations of TC bias and the conducting of the public inquiry with a preconceived view of the outcome.
“There are other cases where the following areas have been considered, though not in every case necessarily succeeded: impression that the TC had prejudged issue, expressions of provisional opinions that went too far and continual interruptions when giving evidence. These are rare cases in practice.”
According to the Office of the Traffic Commissioner, operators can lodge a complaint about the conduct of a TC or deputy TC by writing to the senior TC Richard Turfitt (pictured above) at email@example.com
Its complaints protocol, available at gov.uk, states that the complaint must be made in writing, be legible, and the identity of the complainant must be disclosed. It must also contain as much detail as possible about the alleged misconduct, including dates, and the complainant must consent to full disclosure to the TC or deputy TC involved. Complaints must be made within three months.
If a company wishes to make a compliant about the senior TC, this should be sent to the DfT which will appoint another full-time TC to investigate.
Newton says operators must think carefully before making a complaint and consider whether their grounds for complaint are reasonable. “Overall, the aggrieved person is advised to consider the basis of the complaint and ensure that it is the conduct and the decision which they disagree with. In some cases, the outcome of a case can seem unfair, but it is perfectly in accordance with the law and procedure, therefore the traffic commissioner would not be criticised.”
Appealing a decision
Operators can appeal against at TC’s decision to the Upper Tribunal Administrative Appeals Chamber. The form must be received by the Upper Tribunal within one month of the TC’s written decision being issued.
Operators must provide full written grounds for their reason for appealing. They can apply to the TC to suspend their order until the appeal is decided, but if this is refused, they can apply to the Upper Tribunal for a stay of the decision.
The operator will normally be invited to a hearing in front of a judge, who will consider the evidence that was given at the PI or driver conduct hearing.
The judge will consider whether the TC:
- was plainly wrong, or misdirected themselves about the law or the evidence;
- took into account any matter which should not have been taken into account or did not take account of matters which should have been;
- showed bias, refused the right to be heard, or failed to make clear what was alleged against the operator.
Decisions involving drivers can be reviewed by a magistrates court, rather than the Upper Tribunal.