Neutral Citation Number: [2012] UKUT 36 (AAC)

Appeal No.  T/2011/68

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of

Sarah Bell, Traffic Commissioner for the

Western Traffic Area

Dated 7 November 2011

Before: Hugh Carlisle QC  Judge of the Upper Tribunal

George Inch Member of the Upper Tribunal

John Robinson Member of the Upper Tribunal

Appellant:

TRUCKIT 247 LIMITED

Attendances: Barry Stanton, Director, appeared on behalf of the Appellant

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

Date of hearing: 18 January 2012

Date of decision: 24 January 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 Traffic Commissioner for the Western Traffic Area on 7 November 2011 when she revoked the Appellant’s licence with immediate effect.

2. The factual background to the appeal appears from the documents and is as follows:

(i) On 29 April 2010 a standard national operator’s licence for one vehicle and one trailer, with one vehicle in possession, was granted to the Appellant Company, subject to a condition that the Company would provide by 29 October 2010 three months’ original bank statements and other financial details showing that it had access to £8100.

(ii) The documents were not provided by the due date and on 29 November 2010 the Office of the Traffic Commissioner asked for them to be sent by 13 December 2010.  Bank statements were then provided but they did not show access to the required amount; and a cash ISA was not in the Company’s name.  These inadequacies were pointed out in a letter dated 7 February 2011 and the Company was asked to respond by 21 February: a warning was given that failure to comply might result in regulatory action.

(iii) On 28 February 2011 the Company’s director, Mr Barry Stanton, emailed the Office of the Traffic Commissioner on the Company’s behalf.  He said that he had earlier telephoned for a week’s extension of time but that “unfortunately my bank has as yet still failed to provide the requested statement”.  He was taking steps to obtain the information and realised “that these issues are now overdue”.

(iv) On 22 March 2011 Mr Stanton emailed that the statements were in the post.  However, when received they did not show the amounts required and this was pointed out by the Office of the Traffic Commissioner by letter dated 7 May 2011.  The Company was asked to provide further documents by 23 May.  Again, a warning about regulatory action was given.

(v) On 6 June 2011 Mr Stanton emailed that the bank statements for May would soon be available.  However, these had not been received by 28 June and the Office of the Traffic Commissioner then emailed a demand for original bank statements from 16 March to 14 June 2011, with details of any current overdraft facility.  Response was required by 12 July 2011.

(vi) On 11 July 2011 Mr Stanton emailed that the bank statements had been ordered but they had not yet been received.  On 12 July he promised that the documents would be in the post on the following Wednesday.  When they arrived at the Office of the Traffic Commissioner it was found that the average balance over the three-month period was £6690, not £8100 as required.  Accordingly, the caseworker recommended that the Traffic Commissioner send a letter warning that she was proposing to revoke the licence, inviting representations and an application to have the matter considered at a public inquiry.  A deputy traffic commissioner acting on the Traffic Commissioner’s behalf agreed with the proposal and this letter was sent on 7 October 2011 to the Company’s correspondence address (in fact Mr Stanton’s home address) by recorded delivery.  Subsequently it was returned marked “addressee unknown”.  A similar letter was also sent to the Company’s operating centre.

(vii) No response was received and on 7 November 2011 the Traffic Commissioner revoked the licence pursuant to ss.26(1)(b) and (h) and 27 (1)(b) of the Goods Vehicles (Licensing of Operators) Act 1995.  This decision was notified to the Company on 8 November, being sent to the same two addresses as before.  It seems that this letter must have been received at one or other of the addresses because on 11 November a telephone call was received at the Office of the Traffic Commissioner from Mr Stanton who knew that his licence had been revoked.  He said that he had not received the letters dated 7 October 2011 and that he had been having problems with his post: the operating centre was a parking space only and not an office.  He complained that the caseworker had not attempted to contact him by “other methods” when the letter had been returned.

3. Mr Stanton appeared on the Company’s behalf on the hearing of the appeal.  He had earlier provided us with a narrative account of what had occurred.  He accepted that he had not been able to show the necessary financial standing but considered that he was now able to do so.  He blamed the post office for being responsible for his problems in that it had failed to deliver the letter of 7 October 2011 to his address.  If he had received this letter he believes that he would have been able to demonstrate that the Company met the financial requirements. 

4. We explained to Mr Stanton that we could only consider the situation as at the date of the Traffic Commissioner’s decision, on 7 November 2011.  We could not take more recent financial evidence into account (see para.9(2), Schedule 4, Transport Act 1985).  The Traffic Commissioner cannot be faulted for the return of the letter by the post office.  In the light of the history of persistent and admitted failure to provide the necessary evidence she was plainly entitled to revoke the licence.  The appeal is dismissed.

Hugh Carlisle QC

Judge of the Upper Tribunal

24 January 2012