Neutral Citation Number: [2011] UKUT 85 (AAC)

Appeal No.  T/2010/82

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of John Baker

Deputy Traffic Commissioner for the South Eastern & Metropolitan

Traffic Area

Dated 8 October 2010

Before:

Frances Burton, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

Appellant:

PES TRADING UK LIMITED

Attendances:

For the Appellant: Ramesh Keshaurai Daryanani

Heard at: Victory Houses

Date of hearing: 31 January 2011

Date of decision: 22 February 2011

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the case remitted to the Deputy Traffic Commissioner for further consideration.

REASONS FOR DECISION

1.           This was an appeal against the decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 8 October 2010 when he refused the Appellant’s application for an operator’s licence under s.13(6) of the Goods Vehicle (Licensing of Operators) Act 1995 on the grounds that the application remained incomplete following the Appellant’s failure to supply the supporting documentation listed in the Central Licensing Unit’s final request by letter of 9 September 2010, or to offer any explanation as to why the Appellant was unable to do so. The supporting documentation requested was financial evidence to demonstrate that the Appellant had ready access to sufficient resources to support the application. The type and size of licence applied for, authorising two vehicles, required a sum of £4,800 to have been available during the three months immediately preceding submission of the application.

2.           The factual background appears from the documents and the decision letter of the Office of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 9 October 2010 and is as follows.

(i)               The Appellant, who had previously been a sole trader, had originally applied for a standard national licence in the name of his limited company but could not show finances of £12,600, so had decided to change to a restricted licence, which required only £4,800. Evidence of appropriate finance was requested on three occasions (17 July 2010, 13 August 2010 and 9 September 2010). The first set of bank statements were in the name of Mr Ramesh Daryanani trading as PES Trading. A final letter was then sent out requesting statements in the limited company’s name. In response statements were received which were signed and stamped by the bank but still not in the company’s name. A telephone call to Mr Daryanani confirmed that the bank statements did need to be in the company’s name and this was repeated in writing by letter to all known addresses. This time the statements that were faxed to the office appeared to have been tampered with as the font of the word “limited” did not match the remainder of the text. These were said to be “temporary” statements and the originals were then requested but had not been received by 8 October 2010 when the case was referred to the Traffic Commissioner.

(ii)              The file came before the Deputy Traffic Commissioner with a recommendation that the application be refused, not only because of the failure to supply the bank statements but also because it appeared to the case worker that the Appellant had attempted to deceive by submitting bank statements that had been tampered with. This recommendation was endorsed by the case worker’s line manager and agreed by the Deputy Traffic Commissioner who commented that the Appellant had been given ample opportunity to amend the account to the right name yet had “not done so lawfully”. The Appellant had then appealed to the Tribunal Service and the case worker again referred the matter to her line manager who once more referred it to a Deputy Traffic Commissioner (this time a different Deputy) who confirmed the earlier decision of his colleague adding “the applicant appears to have behaved in a dishonest manner by tampering with bank statements and I consider that the decision to refuse was correct. If he wishes to appeal he should do so … he may be called to PI to explain his seemingly dishonest behaviour. The TT should be told about the altered statements”.

3.           At the hearing of the appeal Mr Daryanani appeared to represent the Appellant company. He said that he had most certainly not tampered with the bank statements submitted. They had been amended, stamped and endorsed by the Bank. He absolutely disagreed with the statements on pages 11 and 12 in the hearing bundle in which the staff and two Deputy Traffic Commissioners had assumed that the bank statements had been falsified by him. We noted that the bundle did not in fact contain any example of these allegedly falsified bank statements, since the only one included, on p.21 of the bundle (which, on p.19, Mr Daryanani says he faxed to the Traffic Commissioner’s office on 1 November 2010) is in the name of the limited company and bears no signs of any different font in any part of the company’s name.

4.           We noted that the copy bank statement of the limited company on p.21 of the hearing bundle displays the dates,  showing that the Appellant company’s account had been correctly named in its corporate entity from at least 4 October 2010.  This was some days before the Deputy Traffic Commissioner had refused the application on 8 October 2010, on the basis of the rejection (without further inquiry) of the temporary bank statement which had nevertheless been stamped and endorsed by the Bank.

5.           In the circumstances we are satisfied that the Deputy Traffic Commissioner’s decision was wrong. At the least the Appellant company should have been called to public inquiry to have the opportunity to explain the circumstances of the Bank’s amendment of the statements. We are also surprised that the allegedly falsified Bank statements were not included in the hearing bundle.

6.           Accordingly we allow the appeal and remit the case to the Traffic Commissioner for his further consideration.

Frances Burton

Judge of the Upper Tribunal

22 February 2011