Neutral Citation Number: [2010] UKUT 465 (AAC)

Appeal No.  T/2010/056

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Philip Brown TRAFFIC COMMISSIONER for the South East and Metropolitan Traffic Area

Dated 7 July 2010

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

MOHAMED ASLAM t/a INSTANT FREIGHT

 

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 20 October 2010

Date of decision: 15 November 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED, the order revoking the licence will come into effect on 30 November 2010.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Miscellaneous, failure to respond to letters

 

 

CASES REFERRED TO:-  None

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the South East and Metropolitan Traffic Area to revoke the goods vehicle operators licence held by the Appellant.  The licence was revoked on a number of grounds, including ‘material change in circumstances’ and the absence of evidence to establish that the Appellant was of ‘appropriate financial standing.

2.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   The Appellant is the holder of a standard international goods vehicle operator’s licence.  The documents do not indicate when the licence was issued or how many vehicles were authorised.

(ii)                 On 23 February 2010 VOSA wrote to the Appellant, at 62 Senrab Street, London, indicating that a report had been received from a Vehicle Examiner who had carried out an inspection at the operating centre, Crescent Wharf, North Woolwich Road, Silvertown, London, on 5 February 2010.  As a result an immediate prohibition was issued, which was ‘S’ marked to signify a significant failure in maintenance.  In addition three other prohibitions were issued.  The Appellant was given the opportunity, within the next 14 days, to provide a written explanation so that it could be taken into account before deciding whether to refer the matter to the Traffic Commissioner.  The appellant did not reply to this letter.

(iii)                VOSA wrote to the Appellant on 12 March 2010 giving him until 19 March 2010 to reply to the letter of 23 February 2010.  On this occasion the letter was sent by Recorded Delivery.  It was delivered and signed for on 15 March 2010 but again the Appellant did not reply.

(iv)                The matter was then referred to the Traffic Commissioner, whose office wrote to the Appellant on 27 May 2010.  Letters were sent by Recorded Delivery both to the Senrab Street address and to the operating centre.  The letter informed the Appellant that the Traffic Commissioner was concerned that there had been a change of circumstances in relation to the licence holder.  In particular the Traffic Commissioner was concerned that the Appellant might no longer be of appropriate financial standing.  Because of this concern the Appellant was required to produce ‘evidence of financial resources consistently and readily available, either in the form of up to date accounts, or bank statements covering the last four months, evidence of an overdraft facility or any other evidence demonstrating that the requirement to be of appropriate financial standing was met’.  Such evidence was required by 17 June 2010.  The Appellant was warned about the Traffic Commissioner’s powers, including the power to revoke the licence and he was told that a response to the letter must be received by 17 June 2010.  The letter to the operating centre was returned ‘addressee gone away’.  The letter to Senrab Street was not returned but there is no confirmation that it was received.  Once again the Appellant did not reply.

(v)                 On 12 July 2010 the Office of the Traffic Commissioner wrote to the Appellant informing him that on 7 July 2010 the Traffic Commissioner revoked the licence, in chambers, with effect from that date.  The revocation was made on three of the discretionary grounds set out in s.26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] , namely prohibitions within the previous 5 years, failing to fulfil an undertaking recorded on the licence to make proper arrangements to keep vehicles fit and serviceable and material change in circumstances in failing to respond to correspondence.  In addition in the absence of any financial evidence the Traffic Commissioner revoked the licence on the mandatory ground that the Appellant was not of appropriate financial standing.

(vi)                On 24 July 2010 the Appellant filed a Notice of Appeal.  The first part of the grounds of appeal deals with occasions on which the Appellant’s vehicles had been found to be overweight.  The next section of the grounds of appeal deals with maintenance, with maintenance reports for the two vehicles currently on the road being supplied for the previous 12 months.  The third section of the grounds of appeal dealt with finance, with further documents supplied.

 

3.           At the hearing of the appeal the Appellant appeared in person.  We explained to him that he would need to satisfy us that, on the basis of the material available to him at the time, the Traffic Commissioner was plainly wrong to revoke the licence.  We also explained that we were most concerned about his failure to reply to correspondence and his failure to provide financial information.

4.           The Appellant explained that he was out of the country between the beginning of February and the end of March and that, in his absence, those in charge of the business did not know what to do.  He said that once he was back in this country he went to Yorkshire, which created a further problem in relation to responding to letters.  He explained that the entrance to the operating centre had been moved and that, despite the fact that they had been informed of the change, the Post Office continued to make unsuccessful attempts to deliver to the old entrance.

5.           The section of the grounds of appeal which deals with overweight vehicles does not assist the Appellant because there is no evidence in the documents that the Traffic Commissioner had this in mind when he revoked the licence.  The main problem with the other two grounds of appeal is that the Appellant is seeking to support the appeal with documents, which could and should have been produced to the Traffic Commissioner in response to the letter of 27 May 2010.  That being the case there can be no justification for admitting any of these documents as fresh evidence.  In any event insofar as the documents consist of bank statements they do not cover the four month period required by the Traffic Commissioner.

6.           We explained to the Appellant that in addition to the absence of adequate financial evidence we were concerned about the failure to respond to correspondence.  The Tribunal has stated on many occasions that operator’s licensing depends on trust.  One important aspect of that trust is that the Traffic Commissioner must be able to rely on an operator having in place: (a) an address at which he can reliably receive important correspondence, (whether it be from VOSA, the Office of the Traffic Commissioner, the office in Leeds or any other significant source), and, (b) a system which ensures that correspondence is fully answered, within any time limit which has been set, or else within a reasonable time and that if documents are requested that they are sent.

7.           In our judgment it is clear in the present case that the Appellant wholly failed to meet those requirements.  As a result and in the absence of financial evidence it seems to us that the Traffic Commissioner was plainly right, on the material before him, to revoke the licence.

8.           It follows that for these reasons the appeal is dismissed.  The order revoking the licence will take effect on 30 November 2010.  We accept that it may not be possible to complete the new licence process within this timescale.  We have chosen this date, (a) to require a sense of urgency on the part of the Appellant and (b) to bring home to him the importance of a reliable method of communication.

9.           We explained to the Appellant that he should take immediate steps to apply for a new licence and that he was entitled to apply for an interim licence, though it would be for the Traffic Commissioner to decide whether or not such a licence would be granted.  Finally we urged the Appellant to provide the Traffic Commissioner with the details of an address at which letters would be received and to satisfy him that once received they would be fully answered.

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

 

15 November 2010