Neutral Citation Number: [2012] UKUT 316 (AAC)

Appeal No.  T/2012/26

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Kevin Rooney TRAFFIC COMMISSIONER for the North Eastern Traffic Area

Dated 30 April 2012

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

ERNEST WALTON t/a E WALTON TRANSPORT

 

 

 

 

Attendances:

For the Appellant: The Appellant did not attend and was not represented

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 24 August 2012

Date of decision: 10 September 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:-   Financial Standing.

 

 

CASES REFERRED TO:- None

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the North Eastern Traffic Area to revoke the goods vehicle operator’s licence held by the Appellant.

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

(i)                   The Appellant is the holder of a standard national goods vehicle operator’s licence authorising 3 vehicles and 2 trailers.

(ii)                 On 3 November 2011 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant asking for original bank statements, showing all transactions in the Appellant’s name, from 1 August 2011 to 31 October 2011.  The letter explained that this request was made because of information received from DVLA to the effect that a recent payment by cheque, for a tax disc, had failed.  The letter went on to point out that the amount required, for the number of vehicles authorised, was £17,100.  The financial details were required by 17 November 2011.

(iii)                On 8 December 2011 the OTC again wrote to the Appellant, pointing out that there had been no reply to the letter of 3 November and indicating that the letter was to be treated as a final reminder to settle the matter by forwarding the necessary details no later than 22 December 2011.  The letter warned that regulatory action might result if there was no response.  This letter was sent by 1^st class post and by Recorded Delivery.

(iv)                On 1 February 2012 an unsuccessful attempt was made to contact the Appellant by telephone.  Checks on the insolvency register and in the London Gazette revealed nothing.

(v)                 On 7 February 2012 an internal memorandum was submitted to the Deputy Traffic Commissioner with a recommendation to revoke the licence on the grounds that there had been a material change in circumstances and that the Appellant was no longer of appropriate financial standing.  The Deputy Traffic Commissioner agreed with the recommendation.

(vi)                On 14 February 2012 the OTC wrote to the Appellant to warn it that the Traffic Commissioner was considering revocation of the licence.  The Appellant was informed of its statutory right to ask for a Public Inquiry.  The Appellant was warned that if it did not request a Public Inquiry or provide a full response to the letters of 3 November 2012 and 8 December 2012 by 6 March 2012 the licence would be revoked.

(vii)              On 25 February 2012 the Appellant provided the OTC with bank statements for it business current account covering the period 1 September 2011-25 November 2011.  The amount shown to be available was, consistently, below that required for the number of vehicles authorised.

(viii)             On 17 March 2012 the OTC wrote to the Appellant to point out that the minimum required for 3 vehicles was now £16,100, (due to changes in the value of Sterling as against the Euro).  The letter pointed out that the bank statements did not show sufficient resources to meet this requirement.  The Appellant was given 14 days in which to provide further financial evidence and it was warned that failure to do so could result in revocation of the licence.  This letter was sent to the correspondence address that the Appellant had supplied and also to the operating centre.

(ix)                On 30 April 2012 the OTC submitted a recommendation to the Traffic Commissioner that the licence should be revoked since there had been no response to the letter of 17 March 2012 and the information provided showed insufficient money to satisfy the requirement for 1 vehicle let alone 3.  The Traffic Commissioner agreed with that recommendation and revoked the licence on the ground that the Appellant was no longer of appropriate financial standing.

(x)                 On 17 May 2012 the Appellant filed a Notice of Appeal.  In the grounds of appeal it was said that the financial information had been sent twice, because the OTC said that they had not received it on the first occasion it was sent.  In effect the Appellant was saying that having sent the information and having responded to every letter which had been received the Appellant had done as much as it could.

3.           The Appellant invited the Tribunal to hear and determine the appeal in its absence.  We agreed to do so and gave careful consideration to the material put before us in the appeal file, bearing in mind that an appeal can only succeed if the Appellant shows that the decision of the Traffic Commissioner, on the material available at the time that the decision was taken, was plainly wrong.

4.           Simply providing some financial information was not sufficient because the Appellant was required to show that the average credit balance over the period in question showed that £16,100 was consistently available.  The information actually provided fell well short of that figure.  Indeed it was not even sufficient for one vehicle to be authorised on the licence.  It follows, in our view, that the Traffic Commissioner was correct in concluding that the Appellant was no longer of appropriate financial standing.

5.           Accordingly the appeal fails and must be dismissed with immediate effect.

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

10 September 2012