Neutral Citation Number: [2010] UKUT 53 (AAC)

 

Appeal No. 2009/507

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Philip Brown Traffic Commissioner for the

South Eastern & Metropolitan Traffic Area dated 26 August 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

Stuart James Member of the Upper Tribunal

 

Appellant:

WILLIAM KING, (t/a B KING SCAFFOLDING

 

 

Attendances:

For the Appellant: The Appellant in person

 

 

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

Date of hearing: 4 February 2010

Date of decision: 16 February 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 Traffic Commissioner for the South Eastern and Metropolitan Traffic Area on 26 August 2009 when he revoked the Appellant’s licence under s.26(1)(f) and (h) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

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

(i) The Appellant is the holder of a restricted operator’s licence authorising four vehicles, with three in possession.

(ii) On 23 February 2009 a vehicle operated by the Appellant was issued with a prohibition notice relating to brakes.

(iii) On 18 May 2009 a vehicle examiner visited London Road, Mitcham but was unable to find No.230 which he understood to be the Appellant’s operating centre. The vehicle examiner attempted to make contact by telephone but there was no answer: no answerphone was available. A further attempt to telephone was made on 22 May without success and the vehicle examiner then sent recorded delivery letters to 230 London Road and to the Appellant’s correspondence address at 19 Cayton Road, Coulsdon. The letter sent to 230 London Road was returned (because “address incomplete”) but the other letter caused a telephone call to be made on behalf of the Appellant on 10 June: the vehicle examiner was informed that the Appellant was returning from holiday on 11 June. The vehicle examiner telephoned the Appellant on 16 June and 23 June but was unable to make contact. A report was submitted to the Traffic Commissioner on 20 July.

(iv) On 4 August 2009 a caseworker in the Traffic Area Office wrote to the Appellant and stated that VOSA had attempted to contact him on numerous occasions without success: it seemed that he had changed address and/or had ceased trading. The letter went on to state that the Traffic Commissioner would be invited to consider revocation of the licence unless a response was received by 25 August. The Appellant was informed of his right to request a public inquiry.

(v) The recorded delivery letter of 4 August 2009 was not received by the Appellant and on 22 September Royal Mail notified the Traffic Area Office that the letter was “not called for”. In the meantime the caseworker notified the Appellant on 1 September that “in the absence of any written representations, the Traffic Commissioner revoked this licence in chambers on 26 August 2009”.

(vi) In his notice of appeal the Appellant states that in February 2002 he sent a letter notifying “change of yard”. He had heard nothing and had assumed that the change was in order. He accepted that he had received the letter of 1 September 2009 but said that he had been on holiday and that it had been on his desk for three weeks unopened: he apologised for the “clerical oversight”.

 

3. On the hearing of the appeal the Appellant told us that apart from the prohibition notice in February 2009 he had had no problems with VOSA for ten years. He had notified his change of operating centre in 2002 and had assumed that this was in order. It was not surprising that the vehicle examiner had not been able to find 230 Mitcham Road because this had been developed and no longer existed as a separate property. He thought that he had himself had a conversation on his mobile phone with the vehicle examiner during the summer of 2009 and that it had been left that the vehicle examiner would ring back to make an appointment. He accepted that there had been a phone conversation with his mechanic, Mr Huggett, on 10 June 2009 but he said that he had not realised that the vehicle examiner had been expecting him to make contact.

 

4. The Appellant said that he had not received the letter of 4 August 2009. He accepted that it had been sent to both addresses and that it should have been dealt with by his secretary who worked on Fridays. She would have been there on both 7 and 14 August but neither she nor he had thought to go to collect the letter which had been sent by recorded delivery and first class post. He had gone on holiday from 15-22 August. He said that he got so many letters that he “must have overlooked it”. He could not explain why the letter of 1 September 2009 had been unopened for three weeks. As soon as he had realised what it contained he had been in contact with the Traffic Area Office: he had been “negligent”. He had now got a new secretary.

 

5. The Appellant had applied for a stay and had then been informed that it was necessary for him to provide evidence of financial resources. He had decided not to do this in the expectation that the appeal would come round quickly.

 

6. This was one of those cases where the more that we heard the worse it got. We think that the Appellant was well aware that VOSA was trying to make an appointment with him during the summer of 2009 but that for one reason or another he failed to address this. Nor did he have any system for dealing with correspondence. We think that neither VOSA nor the Traffic Area Office can be faulted and that revocation was properly ordered. The appeal is dismissed.

 

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

16 February 2010