Neutral Citation Number: [2011] UKUT 281 (AAC)

Appeal No: T/2011/22

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF NICHOLAS JONES,

TRAFFIC COMMISSIONER for the WEST MIDLAND TRAFFIC AREA,

DATED 11 MARCH 2011

Before:

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

Patricia Steel, Member of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

Appellant:

ANDREW JOHN CHATTER t/a AJC VEHICLE DELIVERY & COLLECTION

Attendance:

For the Appellant: No attendance

Appeal heard at: Victory House, London

Date of hearing: 15 June 2011

Date of decision: 7 July 2011

DECISION OF THE UPPER TRIBUNAL:

It is ordered that the appeal be DISMISSED

Subject Matter:

Financial Standing

Cases referred to:

None

REASONS FOR DECISION:

1)     This was an appeal from the decision of the Traffic Commissioner for the West Midland Traffic Area made on 11 March 2011 when he refused the Appellant’s application for a Standard National Goods Vehicle Operator’s Licence under Section 13(3)(b) of the Goods Vehicles (Licensing of Operators) Act 1995.

2)     The factual background to this appeal appears from the documents and is as follows:

(i)     The Appellant applied for a Standard National Operator’s Licence on 10 November 2010. On 16 November 2010 the Office of the Traffic Commissioner asked for evidence of readily available capital and reserves– namely the last 3 months original bank statements along with proof of any overdraft facility in place. Any other documents should also be evidenced by original documents. The required figure was £12,600. On 7 December 2010 a  final reminder was sent by 1st class post, recorded delivery and email.

(ii)    The required financial evidence was not submitted, and it was noticed that the advertisement was for one vehicle only. The application was refused on 12 January 2011, but Mr Chatter then contacted the Traffic Commissioner’s Office claiming that the required evidence had been sent in, although he had no proof of postage.

(iii)  The Traffic Commissioner asked for clarification as to whether the Appellant sought authorisation for one vehicle, or two – and agreed to reinstate the application on the basis of one vehicle (as advertised), which lowered the amount required by way of financial standing to £8,100. A letter seeking clarification and evidence was sent to the Appellant on 24 January 2011, by1st class post, recorded delivery and email. He was given until 7 February 2011 to respond. Mr Chatter responded by email to say that he had posted original bank statements by recorded delivery.

(iv)  In due course an emailed bank statement covering the period 5 October 2010 to 4 January 2011 was submitted, which failed to show the required financial resources. An extension was then granted to 25 February 2011. Eventually, on 10 March 2011, the Traffic Commissioner refused the application for lack of financial standing. Since this decision, further uncertified copy statements were received which still failed to establish the required financial standing. On his Notice of Appeal, Mr Chatter asks for a month to get his funds up to the required level, and lists the payments he expects to receive.

3)     We have carefully read the correspondence between the Traffic Commissioner’s Office and the Appellant. In our view, the Traffic Commissioner’s Office spelled out with clarity the nature of the financial evidence required, and the Traffic Commissioner did more than could reasonably be expected to give the Appellant time to respond. The duty was upon the Appellant to have the requisite financial standing in place over the relevant period, and to be able to demonstrate this by original or certified documents. Even if the documents submitted had been acceptable, and even taking the application to be for one vehicle only, the evidence still failed to demonstrate that the financial standing requirement was met. In these circumstances, and having adopted as flexible approach as he reasonably could (bearing in mind the need to be fair to all operators), we think that the Traffic Commissioner had no choice but to refuse the application on financial grounds. This decision was plainly right. The appeal is therefore dismissed.

Judge Mark Hinchliffe, DCP

7 July 2011