Neutral Citation Number: [2012] UKUT 167 (AAC) Appeal No.  T/2012/01

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF MILES DORRINGTON,

DEPUTY TRAFFIC COMMISSIONER for the SOUTH EASTERN & METROPOLITAN TRAFFIC AREA dated 29 November 2011

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

Appellant:

ZEESHAN MALIK trading as LANGSTON’S GROUP

Attendances:

For the Appellants: No appearance

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

Date of hearing: 16 April 2012

Date of decision: 4 May 2012

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED

SUBJECT MATTER:-   Professional competence; failure to produce evidence of financial standing.

CASES REFERRED TO:- None

REASONS FOR DECISION

1.           This was an appeal from the decision of the Deputy Traffic Commissioner for the South Eastern & Metropolitan Traffic Area made on 29 November 2011 revoking the Appellant’s operator’s licence under s.26 of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

2.           The factual background appears from the documents and the decision letter and is as follows:

(i)              The Appellant was the holder of a standard national operator’s licence granted on 22 December 2010, authorising four vehicles, with two in possession.  The Appellant’s business was in household and office removals.  The nominated Transport Manager was David Drury.  Its operating centre was situated at 1 Gresham Way, SW19 8DW and its correspondence address was Selkirk House, 1 Gatton Road, SW17 OEX.

(ii)             On 18 January 2011, the Central Licensing Unit (“CLU”) learnt of the resignation of the Appellant’s Transport Manager.  By a letter dated 21 January 2011, Will Craik, Case Worker in the CLU  wrote to the Appellant’s correspondence address to inform him that this information had come to the attention of the Traffic Commissioner.  The Appellant was required to provide details of arrangements already made or in progress to nominate a replacement Transport Manager in order to ensure that the Appellant remained professionally competent.  He was given to 4 February 2011 to provide the relevant information.  A TM1(G) form was enclosed with the letter.

(iii)            In response, the Appellant sent two emails to Mr Craik; the first dated 3 February 2011, informed Mr Craik that Mr Drury had resigned as the Appellant’s Transport Manager and that as a result “a few candidates” had been interviewed but the decision had not been finalised.  He requested an extension of the deadline of 4 February 2011 to enable the Appellant to choose a suitable candidate.  He undertook to provide the details of the new Transport Manager as soon as he had been appointed.  The second email dated 8 February 2011, confirmed that the Appellant was in the process of appointing a Transport Manager.  As a result of those communications, Mr Craik wrote to the Appellant on 22 February 2011 informing him that the Traffic Commissioner had determined that the Appellant’s licence should remain in force until 2 June 2011 without a nominated Transport Manager being in place.  The Appellant was warned of the Traffic Commissioner’s powers to revoke his licence if upon the expiry of the deadline, the Appellant was unable to meet the requirement to be professionally competent.

(iv)           On 9 August 2011, James Cliff, a Case Worker, wrote to the Appellant at his correspondence address informing him that the period of grace granted to him by the Traffic Commissioner had expired.  He requested details of arrangements already made or in progress to nominate a replacement Transport Manager; in the event that a Transport Manager had been appointed, documentation was requested.  Further, as the Appellant had been unable to submit bank statements covering a three month period with his original application, he was asked to submit bank statements covering three months and any other financial details to show that the Appellant had £21,600 readily available.  The deadline for production of the information was 23 August 2011.  The Appellant was “strongly advised” to comply with the request as regulatory action could be taken if he failed to do so.

(v)             On 31 October 2011, Anne Bush, Team Leader within the Traffic Commissioner’s office wrote to the Appellant setting out the history of the matter and advising that the CLU had not received any reply to the letter of 9 August 2011.  The Appellant was given a further opportunity to produce evidence of financial standing, which was to be provided by 21 November 2011.  The Appellant was advised of the Traffic Commissioner’s powers under s.26 of the Act; of his right to make written representations by 21 November and of his right to request a public inquiry before any regulatory action was considered.  There are two letters in the appeal bundle addressed to the Appellant’s correspondence address, one of which appears to be a copy that was intended to be sent to the operating centre.  Both letters were sent first class post and recorded delivery.  However, there is no evidence from Royal Mail showing that a recorded delivery letter was sent to the Appellant’s correspondence address. Rather, there is evidence that two recorded delivery letters were sent to the operating centre both of which were returned to the Traffic Commissioner’s office marked “not based at this address”.   

(vi)           On 29 November 2011, the Appellant was sent a letter informing him that his licence had been revoked under sections 26(1)(b), (e) and (h) of the Act (breach of conditions and statements of intent and material change). 

(vii)          On 5 December 2011, the Appellant spoke to Miss Bush on the telephone.  He denied that he had received the letters of 31 October 2011.  He was advised of his right to appeal and to request a stay.  By a letter dated 14 December 2011, the Appellant returned his operator licence discs and advised that he had not as yet managed to employ a suitable transport manager despite the use of various recruitment companies.  The Appellant continued to search for a suitable candidate and in the interim an appeal would be lodged as loss of his licence would affect his business continuity and cause unemployment. 

3.           At the hearing of this appeal, which was listed for 12.30hrs and called on at about 16.00hrs, the Appellant failed to appear.  In the absence of any communication from the Appellant, the Tribunal proceeded to determine the appeal in his absence. 

4.           The Appellant’s grounds of appeal state that following the resignation of Mr Drury, the Appellant had struggled to find a suitable replacement Transport Manager for an authorisation of four vehicles (although we note he only had one vehicle in possession).  A Transport Manager had now been found and he was scheduled to start with the Appellant in January 2012.  The Appellant stated in the notice of appeal that he had applied for a stay to the Traffic Commissioner.  However, the tribunal has been informed by the CLU that no such stay has been granted.

5.           The Appellant lost his professional competence in January 2011 when his Transport Manager resigned.  He did not inform the Traffic Commissioner of that material change or his loss of professional competence.  When enquiries were made of the Appellant as to the current position in February 2011, he assured the CLU that active steps were being taken to replace Mr Drury and interviews had taken place.  Despite a period of grace to 22 June 2011 to allow the Appellant to regularise the position, he did not do so and failed to keep the Traffic Commissioner informed.  He operated without a Transport Manager for a period of ten months during which he failed to reply to the letters dated 23 August 2011and 31 October 2011 and failed to inform the Traffic Commissioner of the steps he had taken and was continuing to take in order to employ a suitable Transport Manager.  He further failed to provide bank statements covering a three month period.  Whilst the evidence before us may suggest that the letter of 31 October 2011 was not in fact sent to the Appellant’s correspondence address, the letter of 23 August had been.  It is of note that by reason of the return of the recorded delivery letters dated 31 October addressed to the operating centre which were marked “not based at this address” there was evidence to suggest that the Appellant was not using his authorised operating centre and that a material change in his circumstances had therefore taken place.  Against that background, despite the uncertainty as to whether the letter of 31 October 2011 was sent to the Appellant’s correspondence address, we are satisfied that he had been put on notice of the need to provide further information by the letter of 23 August 2011 and he should have been aware of the letter of 31 October 2011 if he had been using his nominated operating centre.  In those circumstances, we are not satisfied that the decision of the Deputy Traffic Commissioner to revoke the Appellant’s licence was either plainly wrong or disproportionate.  If the Appellant wishes to operate goods vehicles then he must comply with the regulatory requirements of the licensing system.  This  is dismissed and the Appellant must now apply for a new licence.

Her Honour Judge J Beech

4 May 2011