Traffic Commissioner (TC) Kevin Rooney’s refusal to return an impounded minibus that was on a trial run to obtain a school contract has been upheld on appeal.
On 18 July 2017, the 16-seater minibus, driven by Andrew Gingell, was the subject of a check by DVSA at a school.
Mr Gingell indicated he owned the vehicle and he agreed he was the owner and driver of the vehicle. When asked why the vehicle was not run under a PSV O-Licence he said: “Because it is not for reward or gain”. He said he was paying for the fuel himself.
In his decision, the TC said that it was common ground that Mr Gingell had taken some payment for at least some of the journeys.
Whether he took, or intended to take, payment for the journey on 18 July, it was his own evidence that he was running the service on that day as a “trial” because he wanted the contract in the future.
He had no hesitation in finding that the operation on 18 July 2017 “went beyond the bounds of mere social kindness”. It was a systemic operation intended, at the very least, to deliver a future contract. If it was not for “hire”, and he was far from sure that was the case, it was certainly intended to be for “reward” – the reward being a future school transport contract. The ground for the return of the vehicle was not made out [routeone/Court Report/25 October 2017].
Before the Tribunal, Mr Gingell said that he had been undertaking a trial to see if it was feasible to provide school transport long term. He denied that he had ever operated for hire or reward and had only received one payment of £20.
What he had said in his own interview under caution about having operated “for weeks” and receiving £20 per week for fuel was wrong. He accepted that he was trying to win a contract which would be “worth thousands” but it did not materialise.
Dismissing the appeal, the Tribunal said that they were satisfied that the TC’s determination was beyond challenge and was “unassailable”.
The TC was entitled to be sceptical about Mr Gingell’s account that on 18 July 2017 he had not, or was not, going to receive payment for the service. The TC was right in concluding that the vehicle had been operated for hire or reward.
Furthermore, upon the basis of Mr Gingell’s evidence about the journeys being a “trial run” in order to win a contract, including the journey of 18 July 2017, the TC was right in concluding that the vehicle was being or had been used for reward, and in particular to obtain the school contract commencing in September 2017 which he estimated was worth “thousands”.