Neutral Citation Number: [2010] UKUT 68 (AAC)

 

Appeal No. 2009/529

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Philip Brown Traffic Commissioner for the

South Eastern and Metropolitan Traffic Area Dated 17 November 2009

 

 

 

Before:

Hugh Carlisle QC Judge of the Upper Tribunal

Leslie Milliken Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

 

 

Appellant:

GARY ALAN CHALLINGSWORTH

 

 

 

Attendances:

For the Appellant: No-one appeared

 

 

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

Date of hearing: 16 February 2010

Date of decision: 23 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 dated 17 November 2009 when he revoked the Appellant’s licence under s.26(1)(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 was granted a restricted operator’s licence for one vehicle but subject to a condition that bank statements for May, June and July 2009 were to be submitted by 7 August 2009. The Appellant had been informed that he had to show that £3,100 was available. This evidence was not forthcoming and on 12 August the Appellant was sent a reminder, with a deadline of 26 August being imposed. He was told that credit card statements could also be taken into account.

(ii) Bank statements were then supplied but these did not show that the necessary funds were available, as the Traffic Area Office pointed out by letter on 7 September 2009. The Appellant was asked to produce further information and was warned that disciplinary action was likely if the necessary evidence was not supplied.

(iii) The evidence was not forthcoming and on 14 October 2009 the Traffic Area Office gave a deadline of 4 November. The Appellant was invited to make representations and to request a public inquiry: in the absence of evidence the Traffic Commissioner would consider the papers with a view to revocation.

(iv) On 26 October 2009 the Traffic Area Office noted a telephone conversation with the Appellant. This stated that he had said that the vehicle had been “parked up and not used for months ….. is going to surrender licence and will write in”.

(v) On 19 November 2009 the Traffic Area Office notified the Appellant that the Traffic Commissioner had revoked the licence on 17 November with immediate effect.

(vi) On 27 November 2009 the Appellant’s agents wrote that he was hoping that his position would improve. They were assisting him in obtaining a loan but stated that this was likely to “take a few months”. They enclosed a letter, dated 24 November 2009, sent to VOSA, in which they stated “his situation is that he does not have the required amount in the bank to comply with requirements”. They later said:

“….. He states that he is not now using the lorry and intends to sell it. But his firm intention in the future when he has finance available is to acquire a larger vehicle.”

(vii) The Traffic Area Office replied on 1 December 2009 that in the absence of a reply to their letter of 26 October the matter had been referred to the Traffic Commissioner for his consideration on the basis of the evidence available. The Appellant was informed of his right to appeal and on 18 December he wrote to the Tribunal. He accepted that due to the recession he had not had the cash resources in the bank for the amount required. However, he stated that he now had a substantial annual turnover and invited the Tribunal to “review the revocation and restore my licence for the time when I have the necessary resources for the purpose”. His comments were subsequently repeated in the notice of appeal.

 

3. The Appellant did not appear on the hearing of the appeal and invited the Tribunal to consider the appeal in his absence. We have reviewed all the papers and have to say that the Traffic Commissioner’s decision cannot be faulted. It is admitted that the Appellant could not show the necessary funds when asked to do so and in our view the Traffic Commissioner had no alternative but to revoke the licence on the information available. Even if the Appellant’s circumstances have now changed, and we have been supplied with no evidence to this effect, we are prevented from taking subsequent events into account by reason of paragraph 9(2) Schedule 4, Transport Act 1985 which states:-

“The Tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.”

 

4. The appeal is dismissed.

 

 

 

 

 

Hugh Carlisle QC

Judge of the Upper Tribunal

23 February 2010