Neutral Citation Number: [2010] UKUT 476 (AAC).

Appeal No.  T/2010/66

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Beverley Bell

Traffic Commissioner for the North Western Traffic Area

Dated 4 August 2010

Before:

Frances Burton, Judge of the Upper Tribunal

Patricia Steel, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Appellant:

ANTHONY JAMES EVANS T/A J EVANS TRANSPORT

Attendances:

For the Appellant: B. Rowell

Heard at: Victory House

Date of hearing: 19 November 2010

Date of decision: 17 December 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.           This was an appeal against the Decision of the Traffic Commissioner for the North Western Traffic Area dated 4 August 2010 when she refused the Appellant’s application for a standard national operator’s licence authorising 1 vehicle, on the grounds of failure to meet the required financial standing pursuant to s.13(3)(b) of the Goods Vehicle (Licensing of Operators) Act 1995.

2.           The factual background appears from the documents, the internal Decision on referral to the Traffic Commissioner, and the formal letter dated 5 August 2010 from the Office of the Traffic Commissioner confirming the Decision and is as follows.

(i)               On 3 June 2010 the Appellant submitted an application under Schedule 4 of the Act to transfer the operation of Jack Evans (his father) to himself. On 9 June 2010 a letter was issued requesting various supporting items including 3 months’ bank statements showing £8,100 readily available to demonstrate financial standing. On 14 June 2010 the Schedule 4 submission was agreed by the Traffic Commissioner. On 20 June 2010 the Appellant sent in various scanned documents but no further financial evidence over and above the single bank statement from 22 March 2010, submitted with the initial application and showing a closing balance of £6,427.7. Further correspondence included a copy letter received on 20 July 2010 from Tarmac Limited, addressed to Jack Evans (i.e. not the Appellant) confirming reserves in the name of Jack Evans of £2,000.  There was then a further letter from Tarmac received on 28 July 2010 confirming that a short term loan of £2,100 would be made available to the Appellant if necessary to support his application. Bank statements in the Appellant’s name from 31 January 2010 to 30 June 2010 were then provided, showing a highest balance of £6,554 and a latest balance of only £2.28.

(ii)              On 2 August 2010 the matter was referred to the Traffic Commissioner, stating that three formal requests had been made for the outstanding financial evidence (9 June 2010, 29 June 2010 and 15 July 2010) without adequate response, and on 4 August 2010 the Traffic Commissioner agreed with the recommendation that the licence should be refused. On 5 August 2010 the formal letter was sent refusing the licence on the basis that the required financial standing (access to £8,100) had not been shown. The Appellant then appealed to the Upper Tribunal and a further letter in the appeal bundle showed a balance in Jack Evans’ reserve account with Tarmac Limited of £1,878. The Traffic Area Office then reviewed the file and noted that if this sum of £1,878 were combined with the £6,427 in the Appellant’s bank account when he submitted the application it would meet the financial standing figure required, but the final balance in the Appellant’s account on 3 June 2010 had been only £2.28 and no further bank statements had been provided. On 20 September 2010 the Traffic Commissioner confirmed that she agreed with the internal review of the Traffic Area Office’s process and noted on the file “My original decision still stands”.

3.           At the hearing of the appeal the Appellant attended personally and was represented by Mr Bob Rowell who submitted that the Appellant simply wished to take over his father’s business so that his father could retire, he had been working as an employee of his father for 5 years and there were no problems with his father’s licence which would be surrendered when the Appellant was granted his own. Mr Rowell said that the only problem had been in showing financial standing, as otherwise the same vehicle would be used from the same operating centre. He added that it had at first been thought that £6,200 was required but exchange rates had updated this to £8,100. The Appellant had been asked for bank statements for March to May 2010 inclusive which had shown £6,427 when submitted in June but in that month money had been transferred to “a better account” so that the balance had gone down to £2.28. He submitted that there was also the Tarmac support, providing further sums in a reserve fund linked to earnings, which together with the Appellant’s own funds made up the required amount for transfer of the licence.

4.           We explained to Mr Rowell and the Appellant that the Appellant’s obligation had been to show adequate financial standing and that transfer of the licence had been refused under s.13(11) of the Act because ready access to £8,100 had not been demonstrated. The Tribunal was only able to review the Traffic Commissioner’s decision and to determine if that was wrong on the basis of the information in front of her at the time the decision was taken. The Appellant therefore needed to show us how the Traffic Commissioner was wrong. Mr Rowell responded that he thought the mistake had been to submit the bank statement for June 2010 – showing the balance of £2.28 – as June bank statements had not been requested. However we pointed out that to suppress this information could in effect have been interpreted as attempting to mislead the Traffic Commissioner, which was inappropriate in a relationship which, it is well known, is based on trust between Traffic Commissioner and operator.

5.           We pointed out to Mr Rowell and the Appellant that the requirement was to demonstrate financial standing to the Traffic Commissioner in a complete series of documents. We pointed to the Traffic Area Office’s final letter of 15 July 2010 giving a final deadline of 29 July 2010 to do this, and carrying the warning that it was a “final attempt to resolve these issues”, namely that “the additional documentation listed in the attached annex (marked ‘x’) remains outstanding”. There were actually 4 items crossed in the annex of which the first was “ORIGINAL financial evidence to demonstrate you have ready access to sufficient resources to support your application. The type and size of licence applied for requires a sum of £8,100 to have been available during the three months immediately preceding submission of your application. You must supply original bank statements for the months of March, April and May 2010” (this sentence was very prominently displayed in bold type in the letter from the Office of the Traffic Commissioner). The list continued “Other financial evidence that can be submitted includes overdraft facility, credit card statements and reserve accounts” and that “all financial evidence must be from the same period (March, April and May 2010)”. The letter had also stated “If … you remain uncertain regarding the information still required … you can telephone me, or email me …” and “You may find this particularly useful if additional financial evidence remains an issue”.

6.           In the circumstances we pointed out that if the letter from Tarmac Limited dated 17 August 2010 (at page 106 of the appeal bundle) showing the average balance in Mr Jack Evans’ reserve account with Tarmac over the period February too July 2010 had been produced before 4 August 2010, together with authority from Mr Jack Evans to access these funds, and an explanation had been provided for the suddenly low balance of £2.28 in the Appellant’s own accounts, this, with the 3 months’ bank statements for March to May 2010 from the Appellant’s account, could have sufficed. But this was not done, despite the invitation in the letter of 15 July 2010 to refer back to the office staff in case of difficulty. The Traffic Commissioner cannot be expected to have knowledge of information not explicitly before her and the requirements of s.13 of the Act in relation to showing financial standing are clear and impose a duty on her to satisfy herself that an application meets the statutory requirements and is in order. We also pointed to the warning in the letter of 15 July 2010 that the licence would be refused, and a fresh application would have to be made, if the required documentary evidence was not in place by the stated deadline.

7.           We therefore reiterated to Mr Rowell and the Appellant that the evidence before us clearly showed that the Traffic Commissioner had not been wrong to make the decision that she did, and indeed had been plainly right, however that the obvious next step for the Appellant would accordingly be to reapply, this time with the correct financial evidence. In the meantime it is apparent that the Appellant can continue to drive as his father’s employee.

8.           The appeal is dismissed.

Frances Burton

Judge of the Upper Tribunal

17 December 2010