Neutral Citation Number: [2010] UKUT 472 (AAC) . 

Appeal No: T/2010/75

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF PHILLIP BROWN, TRAFFIC COMMISSIONER for the SOUTH EASTERN & METROPOLITANTRAFFIC AREA,

DATED 22 SEPTEMBER 2010

 

Before:

Judge Mark Hinchliffe,

Deputy Chamber President (HESC); Judge of the Upper Tribunal.

 

Leslie Milliken

Member of the Upper Tribunal

 

Stuart James

Member of the Upper Tribunal

 

Appellants:

 

VST Building & Maintenance Ltd

 

Attendance:

 

For the Appellants: Mr V. Thaci, Director.

 

Appeal heard at: Victory House on 29 November 2010

 

Date of decision: 16 December 2010

 

DECISION OF THE UPPER TRIBUNAL:

 

The appeal is dismissed. We order revocation to come into effect at 2359 hrs on 14 January 2011.

 

Subject Matter:

 

Restricted Licence.

Requirement to show access to adequate financial resources to ensure maintenance of authorised vehicles in a fit and serviceable condition

 

Cases referred to:

 

None

 

 

 

REASONS FOR DECISION:

 

1)    This was an appeal from the decision of the Traffic Commissioner for the South Eastern & Metropolitan Traffic Area made on 22 September 2010 when he revoked the operator’s Restricted Goods Vehicle operator’s licence under Section 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

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 Restricted Goods Vehicles Operator’s Licence. The papers do not reveal the precise authorisation, but correspondence addressed to the operator seeking evidence of readily available capital and reserves of at least £6,500 would suggest that authorisation was for 3 vehicles (£3,100 for the first vehicle and £1,700 for each additional vehicle).

(ii)   The company’s operator’s licence was granted on 31 October 2008, with a condition attached:

3 months original bank statements, covering May, June & July 2009 to be submitted to the Traffic Commissioner by no later than 7^th August 2009.

(iii)  Statements were received at the Central Licensing Unit but, due to being incomplete, a further request was sent requesting statements showing access to funds of at least £6,500. The Unit wrote again on 6 March confirming that internet statements were acceptable but only if signed by a representative of the bank, and officially stamped.

(iv) The required statements were not received and, on 20 May 2010, the Unit wrote again requesting original bank statements (or certified copies) covering the period 1 February 2010 to 30 April 2010. These documents were not forthcoming. On 27 July 2010 Mr Thaci rang the Unit to say that he would send in further bank statements as soon as possible. On 19 August 2010, the Unit wrote to the company to say that no financial information had thereafter been received, and a warning was given that unless the requested information was received within the following 7 days, the matter would be referred to the Traffic Commissioner.

(v)   Nothing was received, and so the matter was considered by the Traffic Commissioner who decided to revoke the licence on the grounds that there had been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence.

 

3)    At the hearing of this appeal, the Appellant company was represented by Mr Thaci, its director. The first point made was that, when he originally sent in the financial documents, it was his understanding that they had been accepted. We reject this claim. The correspondence makes it perfectly clear that the documents initially submitted were not accepted, and the company was so advised.

 

4)    Mr Thaci then claimed that, in July 2010, he spoke to Ms Jackie Fenner at the Central Licensing Unit, and she accepted the suggestion that adequate documentation had already been submitted. We reject this claim. A file note from Jackie Fenner dated 21 July 2010 noted Mr Thaci’s promise to send in further bank statements as soon as possible – which he failed to do.

 

5)    Mr Thaci wished to produce documents to us that had not been produced to the Traffic Commissioner. We declined to accept any new documentation, and we explained to Mr Thaci that the appeal to the tribunal was not a new opportunity to present financial information, but an analysis of whether the Traffic Commissioner was plainly wrong to make the decision that he did, on the evidence before him. To his credit, Mr Thaci then accepted that difficulties with his post and in obtaining adequate original or properly certified bank statements were entirely his responsibility, and there was nothing more that the Traffic Commissioner could reasonably have done.

 

6)    Apart from repeatedly referring in correspondence to ‘financial standing’, which is clearly inappropriate in relation to the holder of a Restricted Goods Vehicles Operator’s Licence, we see no irregularity in the way the Central Licensing Unit and the Traffic Commissioner dealt with this matter. The Traffic Commissioner is entitled to require evidence demonstrating that the provision of satisfactory facilities and arrangements for maintaining authorised vehicles in a fit and serviceable condition will not be prejudiced by reason of the operator having insufficient financial resources for that purpose. In this regard, all Traffic Commissioners adopt a common and shared formula in relation to the holders of Restricted Goods Vehicles Operators' Licenses (see above).

 

7)    The Traffic Commissioner was entitled to take action under Section 26(1)(h). He could, of course, have also taken action under section 26(1)(f), because the undertaking relating to the provision of original bank statements had not been fulfilled. Either way, he was justified in revoking the licence. The operator was given every opportunity to comply, and the company failed to do so. Accordingly, the appeal is dismissed.

 

8)    Pending appeal, the Appellant was granted a stay. We advised Mr. Thaci that we would have to dismiss the appeal, although we would defer the date of revocation to a date 28 days after the date of our written decision. We pointed out that it was open to Mr. Thaci to consider making a fresh application to the Traffic Commissioner. However, should he or his company make such an application, the requirement for financial evidence would arise again. We also advised Mr. Thaci that he might ask the Traffic Commissioner to grant interim authorisation – although we could not say whether such an application would be granted because it would be a matter for the Traffic Commissioner to decide.

 

 

Judge Mark Hinchliffe, DCP

16 December 2010