The Train Driving Licences and Certificates Regulations 2010

Appeals against decisions of the ORR

35.—(1) A person concerned (“the appellant”) may appeal to the Secretary of State against—

(a) a decision of the ORR referred to in paragraph (2); or

(b) a decision of a person duly delegated under regulation 34(1)(a) not to grant an application for a train driving licence, its update or renewal or for the issue of a duplicate of it.

(2) The decisions of the ORR referred to are decisions—

(a) not to grant an application for—

(i) a train driving licence,

(ii) its update or renewal, or

(iii) a duplicate of it;

(b) to suspend or withdraw a train driving licence; or

(c) to prohibit a person from driving a train in Great Britain.

(3) A person is concerned if that person is the applicant, the owner of the train driving licence, the person prohibited from driving or a railway undertaking or infrastructure manager which employs that person.

(4) The Secretary of State may, in such cases as the Secretary of State considers it appropriate to do so, having regard to the nature of the questions which appear to the Secretary of State to arise, direct that an appeal under this regulation will be determined on behalf of the Secretary of State by a person appointed by the Secretary of State for that purpose.

(5) Before the determination of an appeal the Secretary of State must ask the appellant, and the party against whose decision the appeal is brought, whether they wish to appear and be heard on the appeal and—

(a) the appeal may be determined without a hearing of the parties if both of them express a wish not to appear and be heard;

(b) the Secretary of State must, if either of the parties expresses a wish to appear and be heard, afford to both of them an opportunity of doing so.

(6) The Tribunals and Inquiries Act 1992(1) applies to a hearing held by a person appointed in pursuance of paragraph (4) to determine an appeal as it applies to a statutory inquiry held by the Secretary of State, but as if in section 10(1) of that Act (statement of reasons for decisions) the reference to any decision taken by the Secretary of State included a reference to a decision taken on behalf of the Secretary of State by that person.

(7) A hearing held by a person appointed in pursuance of paragraph (4) is a statutory inquiry for the purposes of Schedule 7 to the Tribunals, Courts and Enforcement Act 2007 (functions etc of Administrative Justice and Tribunals Council)(2).

(8) Without prejudice to the right of any person to make an application for judicial review—

(a) a determination by the Secretary of State, or by a person appointed to make a determination on the Secretary of State’s behalf, on an appeal brought under this regulation is binding on all parties affected by that determination;

(b) the Secretary of State, or person so appointed, may give such directions as they consider appropriate to give effect to the determination; and

(c) it is the duty of any person to whom a direction is given under this regulation to comply with and give effect to that direction.

(9) The Secretary of State may pay to any person appointed to hear or determine an appeal under this regulation such remuneration and allowances as the Secretary of State may with the approval of the Treasury determine.

(10) A failure of the ORR, or a person duly delegated to determine applications on its behalf under regulation 34(1) (a), to make a decision on an application for a train driving licence, or for its update or renewal or for a duplicate of it, within one month of receiving all the necessary documents may be treated as a refusal of the application for the purpose of making an appeal under this regulation.

(11) Where under paragraph (5)(b) a party expresses a wish to appear and be heard, the Health and Safety Licensing Appeals (Hearings Procedure) Rules 1974(3), as respects England and Wales, and the Health and Safety Licensing Appeals (Hearings Procedure) (Scotland) Rules 1974(4), as respects Scotland, apply to any appeal under paragraph (1) as they apply to an appeal under section 44(1) of the 1974 Act (appeals), but with the modification that references to a licensing authority are to be read as references to the party against whose decision the appeal is brought.

(1)

1992 c.53.

(2)

2007 c.15.

(3)

S.I. 1974/2040.

(4)

S.I. 1974/2068.