Neutral Citation Number: [2012] UKUT 199(AAC) Appeal No: T/2012/10

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF MILES DORRINGTON,

DEPUTY TRAFFIC COMMISSIONER for the WESTERN TRAFFIC AREA,

DATED 23 NOVEMBER 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:

EDWARD STUART NELSON t/a E S NELSON TRANSPORT

Attendance:

For the Appellant: Mr E.S. Nelson, in person

Appeal heard at: Victory House

Date of hearing: 31 May 2012

Date of decision: 18June 2012

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY 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 Deputy Traffic Commissioner for the Western Traffic Area made on 23 November 2011 when he directed the immediate revocation of the operator’s Standard National goods vehicle operator’s licence, authorising 1 vehicle and 1 trailer, under Section 26(1)(b) and (h), and Section 27(1))b) of the Goods Vehicles (Licensing of Operators) Act 1995.

2)     The factual background to this appeal appears from the documents, and the Deputy Traffic Commissioner’s decision and is as follows:

(i)     The Appellant is the holder of a Standard National goods vehicle operator’s licence, authorising 1 vehicle and 1 trailer. This license was granted in June 2010 with a condition attached that the operator must provide evidence of appropriate financial standing by 31 December 2010. The condition specified that bank statements etc should cover the months of September to November 2010, inclusive. At that time, the operator was required to demonstrate access to readily available capital and reserves in the sum of £8,100.

(ii)    The condition was not complied with and so, on 4 March 2011, the Office of the Traffic Commissioner (OTC) wrote to the operator requesting the necessary information. No response was forthcoming. The OTC then emailed the operator and called him by telephone. The mobile number provided by the operator on his application form was not recognised.

(iii)  Telephone contact was eventually established on 28 June 2011 and the operator agreed to forward bank statements. These were received on 8 July 2011 and covered the period 2 March 2011 to 1 July 2011. There was an overdraft facility available but, even taking that into account, the operator came nowhere near establishing the requisite level of financial standing.

(iv)  On 26 October 2011 the OTC wrote to the operator indicating that, unless the operator provided evidence of financial standing, or requested a public inquiry, she was minded to revoke the operator’s licence. The operator was also advised that the Traffic Commissioner would consider any written representations in reaching her decision.

(v)   On 1/11/2011 the operator’s Transport Manager, Mr Lampitt, emailed the OTC asking to know about previous correspondence and asking to be sent all future correspondence. However, no authority from the operator to disclose private correspondence and financial information to Mr Lampitt had been received, and the OTC requested that, in the absence of authority, the operator himself should deal with the OTC’s correspondence in relation to the operator’s financial affairs. Mr Lampitt thanked the OTC for their quick response, but did not provide any authority.

(vi)  On 7 November 2011 the operator spoke to the OTC on the telephone. He said, at the outset, that his bank statements would not show the required amount but he said that he had paid considerable sums to upkeep his vehicle. He was asked, nevertheless, to submit his financial evidence and the operator agreed to do so by 16 November 2011. On 14 November 2011 the operator sent a bundle of papers to the OTC by recorded delivery.

(vii) The bank statements submitted did not show that the operator was of appropriate financial standing. The matter was therefore referred to the Deputy Traffic Commissioner. No request for a public inquiry had been made and, on 23 November 2011 he decided that the operator had had a sufficient opportunity to demonstrate appropriate financial standing, but had failed to do so. He therefore directed that the operator’s licence be revoked with immediate effect. A letter advising of the Deputy Traffic Commissioner’s decision was sent to the operator at his correct address by recorded delivery on 24 November 2011.

(viii)         On 14 March 2012 VOSA stopped the operator’s vehicle. The operator said that he was unaware that his licence had been revoked. The OTC contacted Royal Mail who confirmed that the recorded delivery letter had been delivered and signed for on 25 November 2011. However, Royal Mail was unable to provide a copy of the recipient’s signature.

(ix)  Notice of appeal to the Upper Tribunal was received on 20 March 2012 and permission to appeal out of time was granted. The grounds of appeal are to the effect that the Deputy Traffic Commissioner failed to take account of all the relevant facts. These facts include the amounts that the operator has spent on his vehicle, and the details of the operator’s family circumstances. The papers also include correspondence from Woodhall Growers Ltd praising the operator for his flexibility, reliability and the high standard of his vehicle.

3)     At the hearing of this appeal, the operator attended in person. We explained the role of the tribunal and, in particular, the fact that an appeal against the decision of the Deputy Traffic Commissioner involved an analysis of the evidence before the Deputy Traffic Commissioner together with (if admitted) any additional information about circumstances existing at that time.

4)     The operator was not in a position to demonstrate appropriate financial standing at the date of the Deputy Traffic Commissioner’s decision and, despite the lengthy correspondence with the OTC, still appeared to think that he could satisfy the requirement with assertions in relation to his high standards of maintenance and his spending on the vehicle, and emotive statements as to his financial commitments and desire to work – which we do not doubt.

5)     The operator said that he had now made a fresh application to the OTC, together with a request for interim authorisation. The tribunal was not unsympathetic to the operator and urged him to seek specialist professional advice in pursuing these applications. Whether or not to grant interim authorisation will, of course, be a matter for the Traffic Commissioner but we anticipate that he or she will need to see evidence of appropriate financial standing by reference to the current criteria. The operator asked the tribunal to grant a stay of the Deputy Traffic Commissioner’s decision pending the promulgation of our decision but we refused this request.

6)     We are satisfied that the decision of the Deputy Traffic Commissioner was not plainly wrong. Indeed, on the evidence before him, he had little choice but to revoke the licence on the grounds of breach of condition and under the mandatory provisions relating to the requirement across the industry, and across the European Union, for all standard licence holders to demonstrate appropriate financial standing.

7)     The appeal is dismissed.

Judge Mark Hinchliffe, DCP

18 June 2012