Neutral Citation Number: [2011] UKUT 236 (AAC)

Appeal No.  T/2011/11

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Fiona Harrington

Deputy Traffic Commissioner for the Western Traffic Area

Dated 13 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:

GREG TAPLIN T/A  G T SCAFFOLDING

Attendances:

For the Appellant: No appearance

Heard at: Victory House, London WC2B 6EX

Date of hearing: 16 May 2011

Date of decision: 15 June 2011

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 Deputy Traffic Commissioner for the Western Traffic Area dated 13 January 2011 when she revoked the Appellant’s standard national operator’s licence under s.26(1)(a), (b), (c)(iii), (e), (f) and (h) of the Goods Vehicle (Licensing of Operators) Act 1995, with effect from 23.59 hours on 18 February 2011.

2.           The factual background is apparent from the documents and the written Decision  of the Deputy Traffic Commissioner, and is as follows.

(i)               The Appellant had held a restricted operator’s licence with effect from 2 July 2002, authorising 1 vehicle, with 1 vehicle specified, T990 WPN, in possession.  His operating centre was at Storage Yard, Station Road, Nursling, Southampton SO16 0YD. By letter of 7 September 2010 he was called to public inquiry following an unsatisfactory maintenance investigation in December 2009. The public inquiry was originally listed for 29 September 2010 but had been postponed to 5 October 2010 at the operator’s request as he had advised the Traffic Area Office that he would be on holiday on that first scheduled date. The new date was advised to the operator by telephone and in writing and he had confirmed by telephone to the Public Inquiry Clerk at the Traffic Area Office on 17 September that he would arrange to attend on 5 October 2010. In the meantime the call up letter of 7 September 2010 and the public inquiry brief had been sent to the operator’s correspondence address, and had been signed for. However on 4 October 2010 the Operator had told VE H McMullen, the VOSA Vehicle Examiner concerned in the case, that he would not be attending the public inquiry as he had returned late from holiday on 2 October 2010, that he had written to the Office of the Traffic Commissioner accordingly.  That letter, dated 3 October 2010, was duly received by that Office on 5 October 2010 in which it was stated by the operator “I feel unprepared for the public inquiry, I therefore feel anxious and uncomfortable in attending the hearing on the 5^th October”. In the meantime he had not complied with the requirement in the call up letter of 7 September 2010 to submit financial evidence by 22 September 2010, showing £3100 readily available to him, either by that date or by the date of the relisted public inquiry on 5 October 2010.

(ii)              In the circumstances the Deputy Traffic Commissioner had determined that the operator had failed to provide reasonable excuse for his failure to attend the relisted public inquiry of 5 October 2010.  The operator was then directed that unless the outstanding financial evidence was supplied within 21 days, together with documentary evidence of appropriate PMI intervals of 6 weeks since January 2010, and an application made to change his operating centre from that designated to the place where the vehicle was normally now kept, she would revoke the licence, and would also consider what other disciplinary action would be appropriate in the event that these 3 requirements were not met within the deadline set. A letter was sent to this effect on 28 October 2010 and the operator responded on 15 November 2010, enclosing financial evidence, PMI sheets for January to September 2010 and an application to vary his licence by adding an  operating centre at Lone Barn Farm, Stanbridge Lane, Awbridge, Hampshire SO51 0HE.  However the Deputy Traffic Commissioner found that the financial evidence was not sufficient to support the minimum financial requirements of the licence, that the maintenance evidence was unsatisfactory in that the driver defect reporting system raised concerns as did the condition of the vehicle.  She directed that a letter be sent drawing attention to the fact that she was still minded to revoke the licence on the basis of the evidence before her.  The operator was then given another opportunity to provide further financial evidence, to make representations and/or to request a public inquiry (for which she allowed him 21 days to respond).  She notified the operator that if there was no response she would make a determination on the basis of the existing evidence before her.  The letter was duly sent by recorded delivery to the registered correspondence address on 29 November 2010.

(iii)            On 19 December 2010 the Office of the Traffic Commissioner attempted to contact the operator to ascertain whether any correspondence had been sent or held up in the postal delays at that time, but the number was unobtainable. The call was therefore repeated to the operator’s mobile telephone number (as indicated on the most recent correspondence) and a message left requesting a call to the Office of the Traffic Commissioner, but no response was received. On 28 December 2010 the operator had sent in a brief letter confirming that PMI dates were being observed every 6 weeks, that the DDR sheets were being completed, the forward planning system used and the change of the operating centre progressing, and confirming that “We understand things have not been kept up to the necessary standard but we undertake to rectify these issues”.  No further financial evidence had been included.  Following confirmation that as at 13 January 2011 when she came to consider the case again, no further communications had been received, the Deputy Traffic Commissioner then prepared her written Decision, as the operator had been forewarned in the correspondence.  On 21 and 26 January 2011 the operator did, however, send in further financial evidence  (3 months’ bank statements) with an explanation that his personal account assisted the cash flow, but by this time the Decision had been taken as the deadline had long been passed.

(iv)            When preparing the Decision, the Deputy Traffic Commissioner had revisited the operator’s letter of 3 October 2010 in which he had taken issue with various aspects of the VOSA report on the unsatisfactory maintenance investigation carried out by VE H McMullen on 9 December 2009.   She did not accept his submission that the Annual Test evidence was incorrect because of the apparent error that the operator had 5 vehicles whereas he had in fact only one,  as the records referred to the number of presentations not the number of vehicles. She accepted his comments on the prohibitions in September 2009 (puncture and defect under the vehicle which should have been noticed) but not his submission that the vehicle was in fact kept roadworthy because of the poor test rate and the fact that another prohibition had been obtained when the vehicle was presented for removal of a prohibition.   She took into account his personal pressures owing to family illness, as set out in the letter of 3 October 2010, but found them no excuse for the failings recorded because of the explicit undertakings given on application for the licence. She gave credit for “some steps” taken to regularise the use of an unauthorised operating centre. However she also indicated that the failure to submit the minimum financial evidence was clearly fatal to retention of the licence as the operator had been given ample opportunity to submit such appropriate evidence and had simply not done so. In revoking the licence she confirmed that he would need to submit a new application, this time satisfying every aspect of the statutory requirements including minimum financial standing.

3.           At the hearing of the appeal no one attended on behalf of the Appellant operator.  He had provided further written submissions in which he indicated that he was a sole operator who had to do everything himself. He submitted that he had prioritised safety of the vehicle and had relied on his PMI maintenance contractor to see that the vehicle was in good order so that he had had it checked before annual test and they had said that it had no defects.  He conceded that he had not notified his new operating centre but submitted that he was putting that right and he could rectify all other deficiencies.

4.           We carefully considered this submission but the failure to supply financial evidence appropriately was clearly the Appellant’s fault, and was fatal to the retention of the licence, so that he must (as the Deputy Traffic Commissioner has already indicated) reapply, this time with all documentation in order. The appeal must therefore be dismissed.

Frances Burton

Judge of the Upper Tribunal

15 June 2011