Travel Express Ltd v Secretary of State for Transport

A regulatory decision based on equivocal evidence involves an error of law where the decision-maker treats uncertainty as confirmation. A finding that an operator may have failed to comply with a licence undertaking cannot properly become a definitive finding of breach without adequate reasoning or supporting evidence. An error is material where the appellate court cannot be satisfied that the same sanction would have been imposed without it. In that event, the sanction may be set aside and the matter placed before the appropriate regulator to consider fresh intervention.

Travel Express Ltd held a standard national PSV operator’s licence. Following a public inquiry, the Traffic Commissioner revoked it under the Public Passenger Vehicles Act 1981. The Commissioner relied on several adverse findings, including an alleged breach of an undertaking to carry out roller brake tests on every vehicle at least every 12 weeks.

The only evidence relied on for that breach was a Vehicle Examiner’s report stating that, because record retention was somewhat deficient, it “could be deemed” that not all vehicles met the requirement. The operator appealed. The remaining central issue was whether that equivocal statement justified the Commissioner’s definitive finding of breach and consequential revocation.

1. Appeal allowed. The direction revoking the operator’s licence was set aside. The case was directed to be placed before the Senior Traffic Commissioner to consider whether fresh regulatory intervention should be initiated.

2. The Vehicle Examiner’s report identified only minor issues in the completion and retention of brake-test records. It stated that there were plentiful records of additional roller brake tests, but that it “could be deemed” that not all vehicles met the 12-week requirement. That statement was equivocal but not ambiguous. It meant that, in light of the record-keeping deficiencies, the undertaking might have been complied with or might not have been complied with.

3. The Traffic Commissioner erred by reading the report as confirmation that the undertaking had been breached. A failure to maintain satisfactory records could provide evidence tending to show that tests had not been carried out. It did not, without more, establish that the undertaking had not been fulfilled. The Commissioner either misunderstood the evidence so that the finding lacked rationality or failed to explain the progression from equivocal evidence to certainty.

4. The error was material. The Commissioner was entitled to regard breach of an undertaking given at an earlier public inquiry as particularly serious and relevant to trust and good repute. However, the Upper Tribunal could not be satisfied that the licence would have been revoked had the flawed finding not been made. The test was whether the Commissioner would have, rather than might have, reached the same result.

5. It was unnecessary to determine the remaining grounds concerning the balancing exercise, tyre condition, walkaround checks, local bus timetables and driver shortages. The unchallenged findings nevertheless raised material regulatory concerns. Nothing in the decision limited the Traffic Commissioner’s power to initiate fresh regulatory action or the matters that could be relied on in any such proceedings.

• Traffic Commissioner for the West Midlands Traffic Area: following a public inquiry, revoked the operator’s PSV licence on 3 May 2024 under the Public Passenger Vehicles Act 1981.
• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the revocation direction, and directed that the case be placed before the Senior Traffic Commissioner to consider fresh regulatory intervention.