Neutral Citation Number: [2011] UKUT 86 (AAC)

Appeal No.  T/2010/83

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Beverley Bell

Traffic Commissioner for the North Western Traffic Area

Dated 29 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:

PAUL FREDERICK BOOMER T/A CAROUSEL

Attendances:

For the Appellant: The Appellant in person

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 DISMISSED.

REASONS FOR DECISION

1.           This was an appeal from the decision of the Traffic Commissioner dated 29 October 2010 when she refused the Appellant’s application for a restricted operator’s licence for 2 vehicles, on the grounds of his lack of fitness to hold a licence, owing to a catalogue of failures to satisfy requirements of s.13 of the Goods Vehicle (Licensing of Operators) Act 1995.

2.           The factual background appears from the documents, the transcript of the public inquiry and the written decision of the Traffic Commissioner and is as follows.

(i)               The Appellant had applied for an interim licence which had been refused by the Traffic Commissioner owing to his previous history. He had then been called to public inquiry by letter of 13 August 2010. The public inquiry was convened on 17 September 2010. The main issues were his fitness to hold a licence (s.13(4)), maintenance arrangements (s.13(5)(c)) and financial resources (s.13(6)). The Appellant’s previous history as an operator, a director of companies, a bankrupt and a convicted unauthorised user of unlicensed vehicles was duly set out either in the original calling in letter or in the supplementary letter of 8 September 2010. Eight separate companies had been dissolved in his previous business life, of these, three had held operator’s licences which had been revoked. There had been extensive unauthorised use of unlicensed vehicles for which the Appellant had received first a prohibition and then convictions for four offences, and he had been disqualified as a company director for six years (2007).

(ii)              The Appellant had attended the public inquiry unrepresented and had attempted to persuade the Traffic Commissioner to give him a restricted licence despite the evidence against him. He reduced his application to one vehicle, stating that he had only applied for 2 to allow room for expansion. His previous business entity, Fibretek Limited, had been dissolved in September 2009 and its operator’s licence revoked and the Appellant had decided to go back into manufacturing his own goods (cushions) and disposing of waste foam for which he only required the restricted licence applied for. He said he employed eight staff and had to operate with a licence as sub-contracting was not cost and operationally effective. It seemed that a previous licence application had been refused and another withdrawn. He claimed that he had been operating unlawfully only since April 2010. He had taken no supporting maintenance documentation with him to the public inquiry and appeared to have none yet in place, but stated that he thought TE Mackay had taken his maintenance records away when he had visited the Appellant on 9 June 2009 in connection with unauthorised use in April 2009. However, when the Traffic Commissioner contacted the Traffic Examiner, it emerged that only two safety inspection records had been taken away by him (22 February 2010 and 14 May 2010) and that the vehicle had not been parked up until April 2010 but had travelled 12,629 kilometres between February and May 2010. The Appellant nevertheless told the Traffic Commissioner that he was going to get the RHA to help him with tachograph analysis and that TE Mackay was going to help him in other unspecified ways, and explained away one of the previous company dissolutions in which he had been involved by saying that he had “phoenixed the company”.

(iii)            The Traffic Commissioner reserved her decision but when delivering it later in writing determined that the Appellant was not fit to hold a restricted licence as required by s.13 of the Act, and that on the basis of his poor operating and business history he was unlikely to be compliant even in operating only one vehicle, and that he did not have suitable maintenance arrangements in place, although he did have sufficient financial standing. In view of the latter finding she concluded that he could well afford to have his goods carried by a “legitimate and lawful haulier”.

3.           At the hearing of the appeal the Appellant again appeared in person. He told us that the Traffic Commissioner had “misinterpreted some things” and that he had only been “a few hundred pounds” short of the appropriate amount. We pointed out to him that the application had not in fact been refused for lack of finance but that the key factor had been unauthorised use and that we were surprised his vehicle had not been impounded in view of the repeated offences. He once again claimed that this had only been because of “pure necessity and not arrogance”.

4.           The Appellant also complained of the handling of his application as it appeared that his advertisement had been “only a few days out of time” which had affected the processing of his licence which he had considered “unfair”: However we pointed out that he had not been in contact with the Central Licensing Office from August 2009 to April 2010, for which his explanation was that he had “given up trying”. We pointed out to the Appellant that the appeal to us was not a rehearing but a review of the Traffic Commissioner’s decision and that it was therefore necessary for him to identify to us where the Traffic Commissioner was wrong in that decision. We explained that we could see that he operated a “just in time” business where goods, including the waste foam, needed to be removed instantly to create space in which to work but that unauthorised use was not the answer, so that he either needed a licence or close contact with a sub-contractor which could provide the service he needed, but which we could see might be impractical. We therefore asked the Appellant to address the Traffic Commissioner’s points in relation to his business history, which we could see were likely to discourage the grant of a licence as much as his poor operator history.

5.           The Appellant told us that he had been involved in three business failures which were each totally explicable. One had been weather dependent. Rapidly increasing oil prices had resulted another business failure. He had also been involved with garden furniture which was seasonal resulting in cash flow problems.. We asked him why he had been disqualified as a company director to which he replied it was “something to do with” petty cash vouchers and false invoices. He added that he had run out of money but had “phoenixed the company” and had seen that previous suppliers with whom he wished to continue to do business had not lost out because they had been invited to “load their invoices” when he was trading again. We explained that this was precisely the sort of conduct that would be likely to influence the Traffic Commissioner against granting another operator licence, as it was plainly unacceptable business practice, and that in particular the use of “phoenix companies” (i.e. putting a company into liquidation for the purpose of abandoning the debts owed and then setting up again in another business entity with the same underlying business and personnel involved but without the previous liabilities) was absolute anathema to Traffic Commissioners who were obviously unwilling to trust an operator who behaved in this way to comply with the obligations of a licence.

6.           We pointed out that the Appellant would not have helped himself by telling the Traffic Commissioner that he had “phoenixed the company” as if this was an entirely acceptable step to take. Moreover, inviting certain suppliers to “load their invoices” in a new operation was preferring some creditors over others, which was also wrong. The Traffic Commissioner’s trust in operators’ ethical business practices was essential to effective and compliant regulation.

7.           The Appellant told us that he would like the Traffic Commissioner to reconsider his application if he had everything in order. We pointed out to him that if that was so, and he made a new application (this time in an appropriate manner) he might find that the Traffic Commissioner would accept some undertakings, for example in relation to the operator’s PMI obligations, tachographs and the involvement of the RHA, but that this would require to be properly articulated and evidenced, since no Traffic Commissioner would have been likely to grant a licence on the basis of the Applicant’s slapdash presentation at the PI  and especially having regard to his poor previous history as the Traffic Commissioner could not condone such behaviour.

8.           Accordingly we dismiss the appeal.

Frances Burton

Judge of the Upper Tribunal

22 February 2011