Neutral Citation Number: [2010] UKUT 225 (AAC)

Appeal No. T/2010/24

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

James Astle Deputy Traffic Commissioner for the

West Midland Traffic Area Dated 29 January 2010

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

George Inch Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

HEDLEY SIMCOCK

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person

 

 

Heard at: Victory House, 30-34 Kingsway, London. WC2B 6EX

Date of hearing: 10 May 2010

Date of decision: 25 May 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

1.               This was an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area on 29 January 2010 when he revoked the Appellant’s licence pursuant to ss.26(1)(b), (c)(iii), (e) and (f) (maintenance and prohibitions) and 27(1)(b) (financial standing) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

2. The factual background to the appeal appears from the documents and the transcript of the public inquiry and is as follows:

(i) The Appellant was the holder of a standard national operator’s licence authorising seven vehicles and two trailers, with two vehicles being in possession.

(ii) On 7 July 2009 a vehicle and trailer operated by the Appellant were the subject of immediate prohibition notices: the vehicle had a seized load sensing valve; and the trailer had a direction indicator which was not functioning correctly. These were cleared on 15 July and 8 July respectively.

(iii) On 28 July 2009 a traffic examiner, Mr Howells, made an unannounced visit to the Appellant’s operating centre at Kington, Herefordshire. The gates were locked and the telephone was not answered. A letter was sent making an appointment for 4 August but the Appellant cancelled this. A date was later agreed and the visit took place on 15 October. No vehicles were inspected because one vehicle was “parked up out of use” and the other had done little work since it had been tested: the Appellant told Mr Howells that no vehicles had been used in the two years prior to April 2009 by reason of his ill health. The inspection revealed numerous shortcomings: one maintenance record was not of a suitable type; inspections had not been carried out at agreed intervals; there was no planner chart in use; there was no formal driver defect system in use and no record of daily checks; there were no maintenance contracts and the annual test history showed a high initial failure rate. The result of the inspection was classified as unsatisfactory and the Appellant was warned that the shortcomings would be reported to the Traffic Commissioner.

(iv) On 18 December 2009 the Appellant was called-up to a public inquiry. The letter stated that the public inquiry would take place on 29 January 2010 and included a form inviting confirmation of attendance. The concerns raised by the traffic examiner’s report were put in issue, as was financial standing. The Appellant was asked to provide by 15 January 2010 his latest accounts, the original bank statements for the past three months and details of any overdraft facility.

(v) The attendance form was not completed. On 22 January 2010 the Appellant applied by telephone for an adjournment. He was told to put this in writing and on 24 January he emailed the Traffic Area Office:-

“As I said on the phone to you, the weather in this area has been so bad. Being a one-man band Coal Merchant I have not time to see anyone about my defence. Also I have not been in the best of health hence have an appointment with the Doctor. Sorry for the delay in getting this message to you”

(vi) The application was refused by the Traffic Commissioner and on 26 January 2010 the Appellant was so informed by email by the Traffic Area Office. On the morning of the day of the public inquiry, 29 January, the Appellant telephoned again and then sent the following email:-

“With reference to our phone call this am 29/01/10 you again have asked for me to write in an email an explanation for not being at the public hearing today. After sending the email on the 24/01/10 my computer had a virus I did not get my computer back from repair until the 28/01/10. It was not until gone 9pm on the 28/01/10 that I started to look at my emails and noticed this one from you. As I mentioned before I am not in the best of health as mentioned to you about my back.”

(vii) The Appellant did not attend the hearing. The case was called on and the Deputy Traffic Commissioner reviewed the application for an adjournment. He decided to continue the hearing. Mr Howells was called as a witness and produced his report. He pointed out that the test history had to be viewed in the light of the non-use of the vehicles. He said that he had understood that the Appellant was a coalman using small trucks which did not require an operator’s licence. The larger vehicles were used for going to shows during the summer.

(viii) After an adjournment the Deputy Traffic Commissioner gave an oral decision. However, we note that this had previously been written out in manuscript, with a draft being made available to us. After carefully reviewing the history the Deputy Traffic Commissioner found that:-

“1) Mr Simcock failed to comply with the condition in his licence requiring him to notify the Traffic Commissioner within 28 days of any change in his maintenance and safety inspection arrangements.

“2) He made a statement of fact or expectation for the purposes of his application for his licence which appears to have either been false or has not been fulfilled, namely that his vehicles would be given safety inspections at six weekly intervals.

“3) He has failed to comply with undertakings made for the purpose of obtaining his licence, that he would make proper arrangements a) to make motor vehicles and trailers fit and serviceable, b) so that drivers would report promptly any defects or symptoms of defects that would prevent the safe operation of vehicles and/or trailers and that any defects would be promptly recorded in writing.”

The Appellant had not provided any financial information and the Deputy Traffic Commissioner went on also to find that the Appellant was no longer of appropriate financial standing. The Deputy Traffic Commissioner revoked the licence on the grounds set out in para.1 above, with immediate effect. The decision was notified to the Appellant on 2 February 2010.

(ix) On 22 March 2010 the Appellant submitted a notice of appeal. He referred to his application for an adjournment which had been refused. He had had an appointment with his doctor cancelled on three occasions but had now seen him. He enclosed a medical report dated 22 March 2010 which states:-

“I confirm that this gentleman was unwell with symptoms of tiredness attributed to his stroke and blood pressure medication earlier this year when he was apparently called for a Court Hearing.

“His symptoms have persisted and we are currently waiting for the results of further blood tests to evaluate this.

“Please bear this in mind if he appeals against his Court Ruling.”

 

3. On the hearing of the appeal the Appellant appeared in person. He told us that he had seen his doctor on 21 March 2010. He had not previously seen his doctor this year and had not earlier attempted to get a medical certificate. He had had a stroke in 2005 and has “good days and bad days”. He takes pills for his high blood pressure and is checked regularly. He had not seen the emailed refusal to adjourn the public inquiry until the night before as a result of computer failure; but he had rung up the following day. He submitted that the Deputy Traffic Commissioner should have granted the adjournment.

 

4. As to the traffic examiner’s report, the Appellant queried the prohibition notice relating to the vehicle and asserted that the testing had not been properly carried out. However, he agreed that he had not raised this point before, either at the clearance a week later, or when the traffic examiner had visited. He accepted that this was a point which should have been dealt with at the public inquiry, if he had attended. He told us that he now only used his two licensed vehicles in the summer and had a low annual mileage.

 

5. The Appellant had not made an application to adjourn prior to 24 January 2010 and had not taken any steps to obtain the financial information as listed in the call-up letter. He told us that all the documents were with his accountants. He had not thought to tell the Traffic Area Office of this or that the documents were not available.

 

6. We asked the Appellant about the email on 29 January when he referred to bad health in relation to his back. He could not understand why he had said this and we have to say that we find the medical report and the evidence of poor health generally as uncompelling. If the Appellant really was unable to attend the hearing on 29 January we would have expected a contemporaneous note to this effect from his doctor. We do not accept that it was not possible to obtain such a note at the time. The Appellant had had ample notice of the hearing and we are satisfied that the Deputy Traffic Commissioner was entitled to refuse the application to adjourn. We would ourselves have come to a similar conclusion.

 

7. We are also satisfied that the Deputy Traffic Commissioner was entitled to accept the evidence of the traffic examiner and to make the findings of fact set out. The evidence was all one way and the case for revocation was fully established. The appeal is dismissed.

 

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

25 May 2010