Neutral Citation Number: [2011] UKUT 237 (AAC)

Appeal No.  T/2011/13

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 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:

SATPAL SINGH NIJJAR T/A NIJJAR SKIPS

Attendances:

For the Appellant:  Faroque Shaik

Heard at: Victory House, London WC2B 6EX

Date of hearing: 16 May 2011

Date of decision: 15June 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED

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 January 2011 when he revoked the Appellant’s standard national operator’s licence under s.26(1)(h) of the Goods Vehicle (Licensing of Operators) Act 1995, with effect from that date.

2.           The factual background is apparent from the documents and the  decision letter from the Office of the Traffic Commissioner, and is as follows.

(i)               The Appellant held a standard national operator’s licence on which the nominated Transport Manager was a Mr Nirmal Singh who was already nominated on two other licences. On 27 August 2010 the Central Licensing Unit at Leeds wrote to the operator stating that their general guidelines required a Transport Manager to commit to at least 8 hours per week for the size of licence concerned.  The letter therefore requested an explanation as to how Mr Singh intended to achieve the level of continuous and effective control required in addition to his other duties.  The details required included those of systems in place, frequency of intended visits to the operating centre, the hours intended to be spent on each of the 3 licences and information in relation to any other employees to assist him.  The requested information was to be supplied by 10 September 2010, and warned that regulatory action might be taken against the licence if the request was not complied with.  No answer was received and the letter was copied to the operator on 16 September 2010.

(ii)              On 25 October 2010 the Office of the Traffic Commissioner at Eastbourne again wrote to the Appellant, enclosing copies of the two previous letters from the Central Licensing Unit and referring to a telephone conversation which had taken place between the Appellant and one of the Unit’s caseworkers concerning the Transport Manager.  On this occasion the letter from the Traffic Commissioner’s Office stated that as the Appellant had failed to provide the requested information the matter had been referred for the Traffic Commissioner’s attention, and warned that unless the outstanding explanations were forthcoming the file would go to the Traffic Commissioner who might consider taking disciplinary action against the licence and again requested a reply. Once more no reply was received and on 16 November 2010 the Office of the Traffic Commissioner at Eastbourne wrote again, referring to all the previous correspondence, and stating that the Traffic Commissioner was now concerned that there might have been a change of circumstances of the licence holder:  in order to satisfy him that there were sufficient financial resources in place to maintain the vehicles covered on the licence, the Appellant was required to produce evidence of the financial resources continuously available to him for this purpose, to be sent to the Traffic Area Office by 8 December 2010.  The letter continued by giving formal notice of the Traffic Commissioner’s power to revoke, suspend or curtail a licence under s 26(1)(h), pointing out that this was mandatory under s 27(1)(a) or (b) if it was the case that the operator was no longer of good repute or appropriate financial standing, and  formally offering an opportunity for the operator to exercise his right to make written representations and/or to request a public inquiry before such action was considered. 

(iii)            On 25 November 2010 a new Transport Manager employed by the Appellant, Mr Faroque Shaik, then telephoned the Traffic Area Office apologising for the delay in response, and explaining that the Appellant had formed a new company of which he would send in all details.  He was advised that the new entity would need to make a further application, including supplying all financial details and was given further time (until 20 December 2010) to achieve this.  However on 18 January 2011 the Traffic Area Office wrote to the Appellant again, stating that in the absence of response to the correspondence the Traffic Commissioner had revoked the licence in Chambers on 17 January 2011.  However in the meantime the Appellant had, on 6 December 2010, surrendered his operator’s licence by sending in the appropriate GV80 form, duly completed, together with the licence disc, to the Central Licensing Unit at Leeds. In the circumstances the operator appealed to the Upper Tribunal.

3.           Prior to the hearing of the appeal the Appellant had, on 6 May 2011,  sent in written representations to the Upper Tribunal, stating that he had received all the letters regarding Mr Nirmal Singh and had passed them to him for detailed reply, but that this had  obviously not been done by Mr Singh.  As a result, when the Appellant had received the letter of 16 November 2010 he had contacted Mr Shaik, who was the Transport Manager on another licence operated by the Appellant, and had thus discovered Mr Singh’s failure to respond to the letters passed to him.  The Appellant referred to Mr Shaik’s telephone call to the Traffic Area Office on 25 November 2010, repeating that further time had been given until 20 December 2010 to provide financial evidence, but adding that in fact he had decided in the first week of December to surrender that licence and had duly done so on the relevant form and sent it in with the licence disc to Leeds, but that the licence had nevertheless been formally revoked on 17 January 2011.  He duly returned the Tribunal’s pro forma attendance sheet with these written representations, indicating that there would be an appearance on his behalf at the hearing.

4.           At the hearing of the appeal Mr Shaik attended on behalf of the Appellant operator.  He told us that the Appellant had three different licences, and that Mr Nirmal Singh had been the nominated Transport Manager for licence number OK1057755. He confirmed the correspondence history and that it appeared that Mr Singh had not dealt with the letters passed to him, stating that after the Appellant had received the letter of 16 November 2010 he had himself been contacted for assistance,  and it had been decided to surrender the licence which had been duly effected, as set out in the Appellant’s written representations and confirmed by copies of the form being supplied by fax by the Central Licensing Unit.  In the circumstances he submitted that the licence had already been duly surrendered well before17 January 2011 so that it was surely too late for it to be revoked on that date.

5.           We agreed with this submission and that the appeal must therefore be allowed.

Frances Burton

Judge of the Upper Tribunal

15 June 2011