Neutral Citation Number: [2011] UKUT 278 (AAC)

 

Appeal No.  T/2011/18

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF

 

TRAFFIC COMMISSIONER for the South Eastern and Metropolitan TRAFFIC AREA

Dated:

 

 

 

Before:

Judge Alan Gamble, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

 

 

Appellant: CDL London Ltd and Collection Point Ltd

 

 

 

 

Attendances: Mr S Durack, Company Secretary

 

 

For the Appellants:  

 

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

Date of hearing: 9 June 2011

Date of decision: 27 June 2011

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the Traffic Commissioner’s determinations of 9 February 2011 be confirmed

 

 

SUBJECT MATTER:-  

 

Nominated Transport Manager 

Appropriate Financial Standing

 

CASES REFERRED TO:- None.

 

 

REASONS FOR DECISION

 

 

1. This is an appeal by the appellant companies (who are part of the same group) against the determinations of the Traffic Commissioner dated 9 February 2011 by which their Standard National Goods Vehicle Operator’s Licences were revoked. Those determinations were made in Chambers without a public inquiry as the convening of such an inquiry had not been requested by the appellants. 

 

2. The appellants were represented at the hearing before us by Mr S Durack, the Company Secretary of CDL London Ltd. 

 

3. The facts and circumstances of the case are fully disclosed in the documentation on file.  They are as follows:

 

 

(a) On 6 October 2009, the Office of the Traffic Commissioner wrote to the appellants informing them that it had come to the notice of the Traffic Commissioner that their Transport Manager was no longer in their employment and requesting them to provide details of her replacement by 20 October 2009. 

 

(b) No response to that letter was received.

 

(c) Thereupon, on 11 December 2009, the Office of the Traffic Commissioner wrote to Collection Points Ltd requesting them to provide written evidence of appropriate financial standing by 8 January 2010.  On 22 December 2009, a similar letter was sent to CDL London Ltd requesting such evidence to be lodged by 12 January 2010. 

(d) On 19 January 2010, in response to the above letters bank statements for each of the appellant companies were lodged with the Office of the Traffic Commissioner. It was stated on behalf of CDL London Ltd that they had funding by means of invoice discounting although they did not have an overdraft provision.  They also stated that they would provide sufficient funds to Collection Points Ltd to fulfil its licence obligation.

 

(e) On 26 January 2010, the Office of the Traffic Commissioner confirmed to CDL  London Ltd that that they had sufficient funds to maintain an appropriate financial standing.  However, given that Collection Points Ltd had a separate operator’s licence they  required evidence that that company had available to it  £17,100 to maintain its financial standing. 

 

 

 

(f) On 4 February 2010 the appellants replied by explaining that Collection Points Ltd was dormant and operated no vehicles. They went on to enquire if a written guarantee for £17,100 from CDL London Ltd to Collection Points Ltd would be sufficient evidence of the latter’s financial standing.

 

(g) By the same letter, the appellants also reported the appointment of a new Transport Manager who would act as such for both companies.  The lady in question did not have a Certificate of Professional Competence but had been booked on a course to enable her to obtain one.  Details of that course were supplied.

 

(h) On 16 February 2010, the Traffic Commissioner decided to allow the operator’s licences in respect of both companies to remain in force until 1 May 2010, without a qualified replacement Transport Manager being appointed.  In response, the appellants, by a letter dated 26 February 2010, undertook to inform the Office of the Traffic Commissioner of the progress of their new Transport Manager in obtaining her qualifications by 1 May 2010. They did not do so until a reminder from the Office of the Traffic Commissioner, dated 17 May 2010, was issued.  On 25 May 2010 they reported that she had not been fully successful in her examinations for the Certificate of Professional Competence.

 

(i) In response to the above letter, the Traffic Commissioner, on 10 June 2010, decided to allow the licence of each company to remain in force until 30 October 2010, without a qualified replacement Transport Manager.

 

(j) Thereafter, on 23 December 2010, the Office of the Traffic Commissioner drew to the attention of each appellant that no information regarding the appointment of a replacement qualified Transport Manager had been received from them.  In the same letter, the Office also requested fresh documentary evidence of financial standing for each of the appellants. That evidence had to be lodged by 14 January 2011.

 

(k) By an email dated 13 January 2011, Mr Durack, on behalf of the appellant companies, reported the appointment of a new Transport Manager, attaching a copy of his certificate of professional competence to his email.  He also on that date lodged bank statements from CDL London Ltd and reiterated the commitment of that company to underwrite Collection Points Ltd.  

 

 

 

 

(l) On 14 January 2011, the Office of the Traffic Commissioner responded, by email to, the above email from Mr Durack.  In that email, they requested production of the original of the new Transport Manager’s certificate of professional competence and also the completion and lodging of the appropriate forms regarding his appointment.  These forms were later lodged by the appellant companies.  They are dated 3 February 2011.  In their letter of appeal, the appellants state that they were sent on 7 February 2011 and delivered on 8 February 2011. 

 

(m) The Traffic Commissioner revoked the licence of each appellant company on 9 February 2011. 

 

 

4. At the oral hearing we asked Mr Durack in what way were the Traffic Commissioner’s determinations wrong in view of the undisputed history documented in detail on file and summarised in paragraph 3 above.  Candidly, he admitted that he could not specify any respect in which  the Traffic Commissioner’s determinations could be said to be wrong.  His general submission was rather to ask us for leniency in respect of the lack of a timeous response to the deadline of 14 January 2011, set by the Traffic Commissioner’s Office by their letter of 23 December 2010.  He made that plea because of the disruptions of the postal service due to the Christmas period and the severe weather of December 2010 and January 2011.  On the basis of it  he invited us to set aside the Traffic Commissioner’s determinations and to restore the operators’ licences of the appellant companies. 

 

5. We reject that submission. We uphold the Traffic Commissioner’s determinations. In our view, there is no way that we could hold them to be wrong, far less “plainly wrong”. The failure of the appellant companies to respond timeously to the requirements imposed by the letter from the Traffic Commissioner’s office dated 23 December 2010 which immediately led to the Traffic Commissioner’s determinations is far from being the only example of non-compliance or at least late compliance with requirements of the Traffic Commissioner revealed by the detailed contents of the file.  Rather, the delay in the appellant’s response immediately before the revocation of their licences represents only part of a general pattern of such behaviour. The appellant companies must realise that the holding of a Goods Vehicle Operator’s Licence places them under an obligation to co-operate with the Traffic Commissioner as the statutory industry regulator and, in particular, to  comply timeously with requirements for disclosure of information which the Traffic Commissioner may impose from time to time using his statutory powers.  The use of those powers is necessary to satisfy the Traffic Commissioner that operators’ licence holders continue to be of repute and of appropriate financial standing and as in this case professionally competent.  It is his statutory duty to be so satisfied.  In our view, the revocation of the licences of the two appellant companies on 9 February 2011 was an appropriate decision by the Traffic Commissioner. Having regard to all the circumstances narrated in detail in paragraph 3 above and the contents of this paragraph we specifically hold that revocation was a proportionate sanction.  We especially note in that connection that it was not precipitately applied.

 

6. The appellant companies did not apply for a stay of the determinations.  In these circumstances, we advised Mr Durack at the hearing to make, if he so chose, immediate application for new operators’ licences.  In so doing, we emphasised that all relevant considerations, not just the appointment of a new Transport Manager, would be considered by the Traffic Commissioner in considering such applications.

 

7. The appeal is dismissed. The determinations of the Traffic Commissioner are upheld.

 

 

 

 

 

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 27 June 2011e He