Whilst there is a strong argument in favour of consistency of approach this should not be mistaken for uniformity of decisions and consistency must not be pursued at the expense of the merits of individual cases. It might be self evident that financial consequences will follow from a direction. Failures to meet the requirements of the operator’s licence may place the repute of the operator and/or the transport manager at issue. The public inquiry process has been shown to be effective in ensuring compliance by inviting operators to attend before the traffic commissioner to explain their actions and outline how alleged failures occurred in the first instance. Operators, applicants and/or drivers can submit written representations in response to reports of non-compliance or other adverse information. The operator’s licence is granted on acceptance by the applicant of certain restrictions and requirements. This is for when you feel God is telling you one thing and people around you are saying another. It may, however, be appropriate to request further comments on the first occasion when operators are found to have incurred a small number of prohibitions; minor failings in their maintenance system; a small number of tachograph errors; vehicle excise duty offences; minor convictions and any other offences not proceeded with. The Senior Traffic Commissioner for Great Britain issues the following Guidance under section 4C(1) of the Public Passenger Vehicles Act 1981 (as amended) to provide information as to the way in which the Senior Traffic Commissioner believes that traffic commissioners should interpret the law in relation to the principles of decision making and the concept of proportionality (see also specific guidance etc: Statutory Guidance and Statutory Directions on Impounding; Statutory Guidance and Statutory Directions on Vocational Driver Conduct). Stay plugged in. They can, as indicated above, order measures to be taken by a disqualified transport manager, for instance re-taking and passing the examinations to obtain a Certificate of Professional Competence. The operator being advised that the matter will be referred back to the traffic commissioner for further consideration and the operator will be notified of the outcome in due course. They are not responsible for identifying which operators/applicants should be called to public inquiries nor are they responsible for the decisions taken at public inquiries but will assist the traffic commissioner with general enquiries. On findings that an operator has failed to meet the standards required it is proportionate for a traffic commissioner to refuse a variation application until such time as the traffic commissioner can be satisfied that everything is functioning properly and to request further checks on any assurances given at public inquiry (see 2003/287 Malco Freight Ltd). Regulation 7 provides that where a traffic commissioner determines that the operator has lost their repute, s/he may order the permanent or temporary withdrawal of some or all of the certified copies or the community licence. However the significance of a formal warning is that if it is ignored it will become one of the factors to be taken into account at a future public inquiry should there be one. The requirement laid down in Article 3(1)(b) shall not be satisfied until a rehabilitation measure or any other measure having an equivalent effect has been taken pursuant to the relevant provisions of national law. Regulation 7 provides that where a traffic commissioner determines that the operator has lost their repute, he/she may order the permanent or temporary withdrawal of some or all of the certified copies or the community licence, In essence, the legal principle of proportionality requires a traffic commissioner when exercising a statutory function, to make decisions which are commensurate with the circumstances of each individual case and the purposes of the legislation. The maximum allowable period of grace following the departure of a transport manager is 6 months. Section 17(1) of the Act requires a traffic commissioner to revoke a standard licence if at any time it appears that the licence-holder no longer meets the requirements of section 14ZA(2): or the transport manager does not meet the requirements of section 14ZA(3): Section 17(2) allows a traffic commissioner to direct that an operator’s licence be revoked, suspended or curtailed on the grounds in section 17(3) that can be summarised as follows: (a) that the licence-holder made, or procured to be made, for the purposes of his application, an application for the variation of the licence, or a Schedule 4 application, a statement of fact that, whether to his knowledge or not, was false, or has not been fulfilled; (aa) that any undertaking recorded in the licence has not been fulfilled; (b) that there has been a contravention of any condition attached to the licence; (c) that there has been a prohibition issued under section 69 of the Road Traffic Act 1988 or that the licence holder has been convicted of an offence under section 71(1)(a) or (b); (d) that a restricted licence-holder no longer satisfies the requirements of Section 14ZB (to be of good repute and/or to be of appropriate financial standing); (e) that since the licence was issued or varied there has been a material change in the circumstances of the licence-holder that were relevant to the issue or variation; (f) that the licence is one where a traffic commissioner has made an order for disqualification pursuant to Section 28(4) of the Transport Act 1985. Staff processing applications on behalf of the traffic commissioner make recommendations as to whether the application should be granted based on the statutory criteria being met and the ability of the applicant to meet the undertakings on the licence. Big-decision thinking recognizes God as a partner in the decision-making process, and prayer is our way of acknowledging our Heavenly Father in all our ways. All content is available under the Open Government Licence v3.0, except where otherwise stated, Annex C - Suggested starting points for recommendations on applications, Annex D - Suggested starting points for consideration of regulatory action, Annex E - Alternative disposals to a public inquiry, Traffic commissioners: the principles of decision making and the concept of proportionality, nationalarchives.gov.uk/doc/open-government-licence/version/3, Al-Le Logistics Limited etc  EWHC 134 (Admin), 2000/065 A M Richardson trading as D J Travel Consultants v DETR, Muck It Limited and Others v Secretary of State for Transport  EWCA Civ 1124, Crompton trading as David Crompton Haulage v Department for Transport North West Area  EWCA Civ 64, 2009/225 Priority Freight Limited and Paul Williams, 2011/028 Heart of Wales Bus & Coach Co Ltd & Clayton Francis Jones, 2013/046 Shearer Transport Ltd and James Shearer, 2008/688 & 745 David Pritchard and Brian Smith, Thomas Muir (Haulage) Limited v The Secretary of State for the Environment, Transport and the Regions  SC 86 (on appeal from 1997 J1), 2016/055 Raymond Kyle Heard trading as Kyle’s Executive Travel, 2013/083 Ahmad Yusuf Kasam trading as Ahmad Kasam & Sons, Muck It Ltd and Others v. Secretary of State for Transport (2005) EWCA Civ 1124, 2015/049 Matthew Reynolds v Secretary of State for Transport, R v SoS for the Home Department, Ex parte Daly  UKHL 26, 2016/046 R & M Vehicles Ltd, Graham Holgate and Michael Holgate, Lindsay v Commissioners for Customs & Excise  EWCA Civ 267), Huang & Kashmiri v Secretary of State for the Home Department  UKHL 11, 2013/022 David James Root trading as Orange Coach Travel, 2014/072 Ian Russell Nicholas trading as Wigan Container Services, 2012/034 Martin Joseph Formby trading as G&G Transport, Anglorom Trans (UK) Ltd v Secretary of State for Transport  EWCA Civ 998, 2009/225 Priority Freight Ltd & Paul Williams, (2015/002 Shoretime Limited (later Leigh Rushworth Ltd), 2009/410 Warstone Motors trading as The Green Bus Service, 2014/059 Randolph Transport Ltd and Catherine Tottenham, 2011/041 Tariq Mahmood trading as T.M. Whilst it would be an overstatement to describe an undertaking as imposing absolute liability (see 2008/413 Al-Le Logistics Ltd and Others) it is part of the operator’s duty to see that the traffic commissioner is informed of the relevant facts. Although action must be considered as at the date of the decision, that does not mean that the past becomes irrelevant. Decision Tree: This is an interesting technique used for analysis of a decision. When considering repute generally traffic commissioners should remind themselves that the opportunity for rehabilitation through the completion of specified measures is only available to transport managers, which allows the decision to be tempered (see 2012/071 Silvertree Transport Ltd). Examples of the suggestions of the type of outcome that the operator might be invited to agree at an STL interview are set out below. In all cases the traffic commissioner may direct that certain documents are to be brought to a Preliminary Hearing or STL interview, such as: the last 3 inspection records for each vehicle; if there are more than 10 vehicles then the traffic commissioner may direct a sample of records; tachograph analysis records and details of infringement action taken (if related to drivers’ hours’ issues). (8) For the purposes of this section a person holds a controlling interest in a company if he is the beneficial owner of more than half its equity share capital (as defined in section 744 of the Companies Act 1985). Traffic commissioners should where necessary explain why a particular direction is more appropriate than another and/or the length of time of that direction. This kind of wisdom is the godly use of knowledge which will grow and develop as an individual When calculating the frequency of occurrence of repeated infringements Member States shall take into account the following factors: (a) seriousness of infringement (SI or VSI); (b) time (at least one rolling year from the date of a control); (c) number of drivers used for the transport activities managed by the transport manager (average per year). Factors such as the wish to protect employees and the setting of priorities might be relevant. Be plugged in with the body of believers. All letters notifying operators/applicants of decisions should provide details of the decision or refer to an attached document and advice on actions to be taken by an operator/applicant and contain information about rights of appeal. (b) notwithstanding anything in section 13 or 24, no operator’s licence may be issued to him. 1. There is no requirement on traffic commissioners to engage with applicants, operators, drivers or other parties immediately prior to a hearing or during those proceedings. This might include alternative undertakings that the operator has indicated that it is willing to give or a public inquiry as further issues have been uncovered or other courses of action. Indeed, every decision is a risk-taking judgment. Traffic commissioners act as a single person tribunal. You can change your cookie settings at any time. > An attempt to ascertain the likely consequences of action will not give rise to a legitimate expectation as to the outcome as until all evidence and submissions have been considered and there has been time for reflection a traffic commissioner will have an open mind (see 2011/035 Professional Transport Ltd and 1997/J37 Galloway Refrigerated Transport Ltd). Paragraph 2 of Schedule 4 of the Goods Vehicles (Licensing of Operators) Regulations 1995 provides the following: The traffic commissioner may direct that the whole or any part of an inquiry be held in private if he is satisfied that by reason of: (a) the likelihood of disclosure of intimate personal or financial circumstances; (b) the likelihood of disclosure of commercially sensitive information or information obtained in confidence; or. Examples include how students spend their time, how a family decides to spend its income, how the government spends revenue, and how regulations may protect the environment at a cost to firm owners. Each of these can be useful, depending on the circumstances and the problem that needs to be solved. As the case law makes clear there is no requirement on traffic commissioners to engage in discussions with applicants and/or operators before reaching a preliminary decision on whether to call to a hearing. In (2015/002 Shoretime Limited (later Leigh Rushworth Ltd), the Upper Tribunal concluded that if an individual carried on acting in a way he knew to be illegal, it is difficult to be confident that he would never adopt a similar approach again. Annex C considers common areas of negative conduct experienced and the positive factors relevant when considering the conduct of operators. Each case must be dealt with on its own facts. To ensure a consistency of approach at the hearing of the public inquiry itself Annex C sets out some suggested starting points. Goods Vehicle (Licensing of Operators) Act 1995. Cloudflare Ray ID: 606ca2221c33d5f4 In conducting our review of opinions of wraparound experts about the principles, this has been one of several points of contention; specifically, how … If the evidence demonstrates that it is unlikely then that will, of course, tend to support a conclusion that the operator ought to be put out of business. Distribution of responsibility gives p… Your IP: 22.214.171.124 and/or decision making responsibilities vis-à-vis the child, and may exercise considerable influence within wraparound. This publication is available at https://www.gov.uk/government/publications/traffic-commissioners-the-principles-of-decision-making-and-the-concept-of-proportionality-november-2018/statutory-document-10-principles-of-decision-making. Annex II provides the maximum frequency of occurrence beyond which repeated serious infringements shall be regarded as more serious, by taking into account the number of drivers used for the transport activities managed by the transport manager, as set out below: 1 - The serious (SI) and very serious (VSI) infringements listed in Annex I, when committed repeatedly shall be regarded as more serious by the competent authority of a Member State of establishment. This will be even more important where a traffic commissioner is concerned regarding the risk of “fronting” (see Statutory Guidance and Statutory Directions on Good Repute and Fitness and 2012/071 Silvertree Transport Ltd). Not having a tachograph and/or speed limiter, or using a fraudulent device able to modify the records of the recording equipment and/or the speed limiter or falsifying record sheets or data downloaded from the tachograph and/or the driver card. Promises are easily made, what matters is whether those promises will be kept: actions speak louder than words. The case law indicates a general principle that at the time the disqualification order is made that the operator cannot be trusted to comply with the regulatory regime and that the objectives of the system, the protection of the public and fairness to other operators, requires that the operator be disqualified (see 2009/011 Katherine Oliver and J W Swan & Partners). Such collaboration is an inclusionary process that promotes lateral communication and shared decision-making. Preliminary Hearings and meetings between senior staff and operator are intended to offer an alternative to a public inquiry. operates any public service vehicles in partnership with a person who holds such a licence; the powers under section 17(2) of the 1981 Act (revocation, suspension, et cetera, of PSV operators’ licences) shall be exercisable in relation to that licence by the traffic commissioner by whom it was granted. It is clear that each case must be considered on its own merits (see 2009/011 Katherine Oliver and J W Swan & Partners, paragraph 12) and relies on the traffic commissioner to assess what is necessary to balance the objectives of the legislation including the protection of the public and ensuring fairness to the legitimate licensed transport industry against the potentially significant infringement of the licence holder’s or individual’s rights. When an applicant is seeking to change operating centre address to one on the same Industrial Estate/road, vehicles will generally be entering and exiting the new site via the same route and there are no previous environmental issues, the caseworker should recommend grant. The legislation enables an operator’s licence to be subject to revocation, suspension or curtailment (or in the case of PSV operators, a reduction in the number of authorised vehicles). A non exhaustive list of the suggested actions is set out below: an audit to be carried out in 6, 9 or 12 months and the report and the remedial action taken to be sent to the OTC within a month of completion of the audit. Read our 10 principles of decision making that helped us become the global leader in experience design and experiential marketing. The presiding traffic commissioner retains absolute discretion to move up or down from the suggested starting points. These principles enable students to understand some of the motivational factors which guide consumers in their interactions with other consumers in the market. On the standard of proof, the House of Lords has cited with approval the proposition that “the more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it” (see Re Dellow’s Will Trusts  1 WLR 451 at p455 as approved in Re H and R  UKHL 16 and Re L (1996)(1) FLR116). It's 10-10-10, by Suzy Welch. Per 2018/072 St Mickalos Company Ltd and Michael Timinis, 2019/055 Samra Foodservice Ltd and Hardev Singh Samara, the Upper Tribunal advised advocates: that if they fail to address a TC upon the issue of disqualification and are not then invited to do so by a TC and if that failure is either the only or main ground of appeal before the Tribunal, then whoever represents the operator on appeal, must be prepared to make the necessary submissions as to the effect and length of disqualification before the Tribunal bearing in mind our jurisdiction to substitute our own decision for that of the TC in appropriate cases pursuant to paragraph 17(2)(a) of Schedule 4 of the Transport Act 1985 (2019/072 Cavendish School of English Ltd and Marcus Barber). By Larry SpearsListening - Traditionally, leaders have been valued for their communication and decision making skills. In the case of prohibition and conviction it is plain that the protection of the public is a very important consideration. The applicant must satisfy the traffic commissioner that on the balance of probabilities all of the above requirements are met for the type of licence they are applying for. Section 35 of the Act provides that it is for the traffic commissioner to decide whether a public inquiry is necessary for the proper exercise of the commissioner’s functions under the Act and may decide to join two or more cases in one hearing (see 2011/028 Heart of Wales Bus & Coach Co Ltd & Clayton Francis Jones). The Upper Tribunal has stated two clear principles on the issue of proportionality: As stated above, the licensing regime exists to promote road safety and fair competition. Where an application for Regulation 31 is received following the death of the licence holder and when that licence is not subject to compliance proceedings a recommendation should be made to grant for a period up to 12 months (see Statutory Guidance and Statutory Directions on Legal Entities). This Guidance may be subject to decisions of the higher courts and to subsequent legislation. The question of the likely effect upon the operator should be properly examined and advocates are expected to assist in this exercise. Whilst there may be an element of deterrent effect the discounting of penalties or other sentencing practices are discouraged (see 2003/300 Andrews (Sheffield) Ltd). Even the most organised operator may occasionally make a genuine mistake and, unless this is serious, formal action may not be required. The following is an accessible alternative to the original PDF statutory document. The traffic commissioner is entitled to determine the structure of a public inquiry and the evidence that is to be called provided that the rules of natural justice are safe-guarded (see 2003/094 Dawlish Coaches Ltd and Statutory Guidance and Statutory Directions on Case Management). Per 2002/217 Bryan Haulage (No.2) – there is no material difference to the approach taken to proportionality in other jurisdictions, see the Upper Tribunal decision in 2013/026 Vince Larkin Ltd by reference to R v SoS for the Home Department, Ex parte Daly  UKHL 26 and Bank Mellat v HM Treasury  UKSC 39. They should both follow a consistent structure: prior to a Preliminary Hearing or STL interview (and at least 14 days in advance) the Traffic Area Office will write to the operator identifying the operator licence failures either in summary form or by the inclusion of any reports that have been put before the traffic commissioner; the operator will be asked to attend with documentary evidence of current compliance such as maintenance records and tachograph or domestic hours’ legislation compliance (see above); the person attending may be asked for written confirmation of their authority to bind the operator to any undertakings etc; in the event that the operator does not attend or does not request an alternative date any initial recommendation for regulatory action will stand; a Preliminary Hearing will always be clerked; at an STL interview the senior member of staff must always be accompanied by another member of staff who will make notes; the parties who attend are entitled to be accompanied by a legal or other representative as if they were attending a public inquiry or driver conduct hearing; within 14 days of an STL interview the senior member of staff will make a final recommendation to the traffic commissioner as to the type of regulatory action that they might like to consider. In the process of decision making, we ma… The proper question is whether in that context the direction is appropriate in the public interest. Every effort has been made to replicate the original faithfully, but this has not always been possible. Flashcards. The viability of the company should be considered in view of the scale of the operation. Good practice indicates that evidence and submissions on consequences should be invited before an order is made (see 2002/167 A Cooper trading as C-Fare Oban). Regulation 6 of the Public Service Vehicles (Operators’ Licences) Regulations 1995 allows a traffic commissioner to refuse an application for a PSV licence where s/he finds the application or the applicant’s conduct to be frivolous or unreasonable (see 2013/083 Ahmad Yusuf Kasam trading as Ahmad Kasam & Sons). There is only so much OTC staff can reasonably be expected to do to assist applicants. So all managerial functions such as planning, direction, organizing, controletc. Section 27 of the Act requires a traffic commissioner to revoke a standard licence if at any time it appears that the licence-holder no longer meets the requirements of section 13A(2): (a) has an effective and stable establishment in Great Britain, (c) has appropriate financial standing, and. As a result, whilst the following guidance can provide for consistency in approach by suggesting starting points for recommendations this Annex cannot be used to predict the outcome of an application or give rise to a legitimate expectation. The role of a public inquiry clerk (caseworker) is to provide administrative support to the traffic commissioner to allow him/her to carry out their statutory duties in relation to public inquiries and/or driver conduct hearings. 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