Neutral Citation Number: [2011] UKUT 209 (AAC)

Appeal No.  T/2011/8

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Gillian Ekins

Deputy Traffic Commissioner for the

Eastern Traffic Area Dated 5 January 2011

Before:

Frances Burton, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

Appellant:

DAVID JOHN NUTT

Attendances:

For the Appellant: the Appellant in person

Heard at: Victory House, Kingsway, London WC2B 6EX

Date of hearing: 20 April 2011

Date of decision: 20 May 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED with effect from 23.59 hours on 1 June 2011 when the Order of the Deputy Traffic Commissioner will come into effect.

REASONS FOR DECISION

1.           This was an appeal from the Decision of the Deputy Traffic Commissioner for the Eastern Traffic Area dated 5 January 2011 when she revoked the Appellant’s Operator’s Licence under s.261(b) (contravention of condition to notify the Traffic Commissioner of a change of maintenance contractor), s.26(1)(f) (undertakings), s.26(1)(h) (material change) (financial standing) and s.27(1)(b) (financial standing) of the Goods Vehicle (Licensing of Operators) Act 1995. No action was taken under s.27(1)(a) (good repute) or s.27(1)(c) professional competence.

2.           The factual background is apparent from the documents, the transcript of the public inquiry (including the Deputy Traffic Commissioner’s oral decision) and the decision letter of the Office of the Traffic Commissioner and is as follows.

(i)               On 25 August 2010 the Appellant was called to a public inquiry scheduled for 6 October 2010 to consider action against his standard national operator’s licence under s.26 (1)(b), s.26(1)(f), s.26(1)(h), s.27(1)(b), s.27(1)(c) and s.28 of the Goods Vehicles (Licensing of Operators) Act 1995, and was to demonstrate financial standing in the amount of £12,600. There were also issues of maintenance following a maintenance inspection on 6 April 2009 and a report dated 15 April 2010, at which the following deficiencies were noted: PMI records only available to June 2008; no evidence of a Drivers Defect Reporting system in use; maintenance contractor change in March 2009, without due notification to the Traffic Commissioner; 100% annual test failure, reduced in April 2010 to 80%. The Appellant had confirmed on 31 August 2010 that he would attend the public inquiry on. The calling in letter had requested financial documentation to be provided by 28 September 2010, specifically the latest profit and loss account and balance sheet for the business, bank statements “for the last 3 months” and details of any overdraft facility or other loan arrangement. Maintenance documentation was also requested.

(ii)              At the public inquiry the Appellant attended but had not sent in the advance financial information as required by the calling in letter. Asked to explain why by the Deputy Traffic Commissioner, the Appellant said it was because he could not get the figures together because his VAT quarter was due at the end of September but that he had “got things all gathered together here”. The Deputy Traffic Commissioner was however unimpressed by the Appellant’s explanation that he “flew to the bank this morning” as he had been requested to collect the necessary information in August, nor with the fact that he had produced a letter to say that he had an overdraft, nor the absence of his Transport Manager (which was apparently due to the recent death in an accident the previous Sunday, but which had not been notified to the Deputy Traffic Commissioner in the intervening days before the public inquiry opened).

(iii)            At the hearing on 5 October 2010 evidence as given for VOSA by VE Craig Boswell who had examined the maintenance documents brought in by the Appellant, which he described as “completely unsatisfactory”, with numerous missing details and records of tyre tread measurements so inaccurate that he considered that the measurements must have been incorrectly taken. There was also concern at both failed and missed annual tests, and the facilities for maintenance, and the Deputy Traffic Commissioner was unhappy about the performance of the Appellant’s Transport Manager, in particular because it appeared that tachographs were not being analysed. In the end the public inquiry was adjourned (ultimately to 5 January 2011) to permit the Appellant to produce adequate financial documentation as the Deputy Traffic Commissioner was not satisfied with that brought to the public inquiry on that occasion.

(iv)            Following the public inquiry of 7 October 2010 the Operator was given 14 days to produce 3 months original bank statements, full details of any loan or overdraft facility in place prior to 1 September 2010 and all invoices for PMI servicing by S&J Commercials to whom he had transferred his PMI contract (without previously notifying the Traffic Commissioner). This was confirmed in a letter dated 7 October 2010 and on 22 October 2010 the Office of the Traffic Commissioner wrote again as the required documentation had not been received. At the reconvened public inquiry on 5 January 2010 the Appellant did not attend although he had been duly called by letter of 24 November 2010 and had been clearly informed at the hearing adjourned on 7 October 2010 that the attendance of himself and his Transport Manager, James Duncan would be required at the reconvened hearing. In the absence of the Appellant the Deputy Traffic Commissioner gave an extempore oral decision, recording that the Appellant had neither attended nor produced the required financial documentation nor made contact with the Traffic Area Office to offer any explanation as a result of which she had concluded that the financial requirement of £12,600 for his standard national operator’s licence had not been met and that she therefore made that finding under s.27(1)(b) and Schedule 3 of the Act, and, together with other findings in paragraph 1 above, revoked the licence with effect from 14 January 2011 at 23.59 hours.

(v)             On 19 January 2011 the Appellant appealed, inter alia, on the grounds that the required documents had been sent “to Ivy House via fax”.

3.           At the hearing of the appeal the Appellant attended personally and told us that his partner had cancer so he “juggles everything”. He again insisted that his bank, HSBC, was happy to increase his overdraft to £18,000 but did not appear to understand that he was obliged to demonstrate appropriate financial standing to the Deputy Traffic Commissioner and that the onus was on him as operator to provide appropriate documentation as required in order to retain his licence. We pointed out that he had failed to answer 3 letters or to appear at the reconvened public inquiry. The Appellant explained to us that he had mistaken the date and had thought the public inquiry was to be held the following week. He insisted that his vehicles were nevertheless in good condition, that no action had been taken against his repute or professional competence and that he had faxed details of his maintenance changes “to Ivy House”. He added that he had never in 5 years been stopped, overloaded with a dangerous load, had prohibitions or other indication that his vehicles were not kept up to standard.

4.           We pointed out to the Appellant that the public inquiry had been convened in October 2010 because of maintenance concerns and financial standing and adjourned and reconvened to 5 January 2011 to enable him to demonstrate such facts. However that because he had neither attended nor sent any message to the Traffic Area Office the Deputy Traffic Commissioner had not been wrong in law to proceed in his absence and had correctly found that he had not demonstrated financial standing as he was required to do.

5.           We explained that in the circumstances we were unable to conduct a rehearing of the case he should have presented on that occasion but that he would have to reapply for his licence, on this occasion with all the financial documentation in order. In view of the personal circumstances that he had explained to us we told the Appellant that the only way in which we could help him was to point out that he must as soon as possible apply for a new licence (including an interim licence to enable him to keep operating) since he would otherwise not be able to use his vehicles as soon as he received our written decision because (as we had explained) we would have no choice but to dismiss his appeal. This was because there was no way in which the Deputy Traffic Commissioner could be said to be wrong in law since it had been for the Appellant to demonstrate financial standing and had not done so in appropriate form. We pointed out that we could delay the order dismissing his appeal (as the Deputy Traffic Commissioner had done on 5 January 2011) to give him time to make a new application with the required financial documents but that the onus would still be on him to demonstrate his financial standing correctly and to obtain such professional assistance as required to do so.

6.           Accordingly the appeal is dismissed and the order of the Deputy Traffic Commissioner will come into effect at 23.59 hours on 1 June 2011.

Frances Burton

Judge of the Upper Tribunal

20 May 2011