Neutral Citation Number: [2012] UKUT 400 (AAC)

Appeal No.  T/2012/35

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Miles Dorrington Deputy Traffic Commissioner for the Eastern Traffic Area

Dated 29 May 2012

 

 

 

Before:

Michael Brodrick, Judge of the Upper Tribunal

Patricia Steel,   Member of the Upper Tribunal

David Yeomans,   Member of the Upper Tribunal

 

 

 

Appellant:

ANDREW HARDY t/a ANDREW HARDY COMMERCIALS

 

 

 

 

Attendances:

For the Appellant: Mr Hardy appeared in person

 

 

Heard at: Victory House

Date of hearing: 5 October 2012

Date of decision: 31 October 2012

 

 

 

 

AMENDED DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the matter be remitted for rehearing.

 

 

 

Subject Matter:  Miscellaneous, correspondence address

 

Cases referred to: None

 

 

REASONS FOR DECISION

 

 

1.          This is an appeal from the decision of the Deputy Traffic Commissioner for the Eastern Traffic Area to revoke the Appellant’s standard international goods vehicle operator’s licence on a number of grounds, including the fact that there had been a material change in circumstances, in that the Appellant was no longer contactable at the correspondence address which he had provided.

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

               (i)             The Appellant is the holder of a standard international operator’s licence authorising two vehicles and two trailers, with an operating centre at Unit 2 Moore Road, South Leicester Industrial Estate, Ellistown, Coalville, LE67 1FB.

              (ii)             The correspondence address which the Appellant provided to the Office of the Traffic Commissioner, (“OTC”), was Unit 2 Dawsons Yard, Swepstone Road, Heather, Coalville, LE67 2RF.

            (iii)             On 20 August 2010 the OTC wrote to the Appellant, at the correspondence address, to notify him that the Traffic Commissioner intended to hold a Public Inquiry on 28 September 2010.  The letter went on to indicate that the Traffic Commissioner would consider the roadworthiness prohibitions issued to the Appellants’ vehicles, his failure to comply with a condition requiring the production of original bank statements, his failure to have safety inspections at 6 weekly intervals and his failure to make proper arrangements to keep vehicles fit and serviceable.  The Appellant was requested to produce evidence to establish that £12,600 was readily available to satisfy the requirement to be of appropriate financial standing.

            (iv)             On 29 September 2010 the OTC wrote to the Appellant, at the correspondence address, following the Public Inquiry on the previous day.  The letter recorded that the Traffic Commissioner had found that there had been a number of breaches of the provisions of s. 26 of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] and that the good repute of the Appellant and the Transport Manager was tarnished but not lost.  A number of undertakings were recorded and the licence was curtailed to one vehicle and one trailer for a period of a week.

             (v)             In a letter, received by the TAO on 8 October, Mr Addis, (the Transport Manager, who had also been called to the Public Inquiry), set out the steps which had been taken, with the agreement of the Appellant to comply with the undertakings.

            (vi)             On 14 October 2010 the TAO wrote to the Appellant at the correspondence address pointing out that while some of the undertakings had been complied with others had not.  The Appellant was given a further week in which to provide a schedule of preventative maintenance inspections, together with the records to support it.  In addition the Appellant was required to nominate the dates for the curtailment.  A copy of the letter was sent to the Transport Manager.

           (vii)             The Transport Manager replied in an undated letter setting out his attempts to contact the Appellant with a view to providing the necessary schedule and the supporting documents.  He said that he had been told by the Appellant that the documents had been sent to the TAO and that the Appellant maintained that there was nothing further to be done.  He asked for advice from the Traffic Commissioner.

         (viii)             On 15 November 2010 the OTC replied that the advice from the Traffic Commissioner was that if it became clear that he could not perform the role of Transport Manager properly he should first give a written warning.  If that proved ineffective he was expected to resign rather than carry on in a situation in which he was not permitted properly to perform his role.

            (ix)             On the same date the OTC wrote to the Appellant, at the correspondence address, asking for explanations, first as to the delay in meeting some of the undertakings.  Secondly, he required an explanation as the how the Transport Manager exercised continuous and effective responsibility.  The Appellant was allowed 14 days in which to respond.

              (x)             On 7 December 2010 the OTC wrote again, to the correspondence address, pointing out that 21 days had passed without a response and adding that the matter would be put before the Traffic Commissioner if no response was received within the next 7 days.

            (xi)             On 15 April 2011 the OTC sent letters by 1^st class post and recorded delivery to the correspondence address and the operating centre.  The Appellant was warned that the Traffic Commissioner was proposing to make a direction revoking the licence on the ground that there had been a material change in circumstances, in that the Appellant was no longer contactable at the correspondence address.  The Appellant was advised of his right to request a Public Inquiry.

           (xii)             On 19 April 2011 the Appellant telephoned the TAO complaining that it was the fault of the TAO that he had not received some letters.  The note of this telephone call indicates that the Appellant maintained that the letters should have been sent by DHL and not via the Royal Mail.  He said that the post was just thrown onto a table in a central office because the Royal Mail did not perform their duties correctly and that complaints by the OTC should be directed to the Royal Mail rather than to him because he took the view that it was the responsibility of the OTC to ensure that he got his post.  The Appellant added that he was happy to return to the Public Inquiry because he was confident that the Traffic Commissioner would find in his favour.  He confirmed that his correspondence address was correct.

          (xiii)             On 16 August 2011 the OTC wrote to the Appellant at the correspondence address.  The letter was sent by special delivery.  The letter informed the Appellant that the Traffic Commissioner would hold a Public Inquiry on 30 September 2011 at which he would consider evidence that the Appellant had failed to comply with some of the undertakings given on 28 September 2010.  In addition the Appellant was informed that the Traffic Commissioner would consider his failure to respond to a number of letters was well as the fact that a letter dated 15 April 2011, sent to the operating centre had been returned by Royal Mail marked ‘addressee gone away’.  The letter warned the Appellant that other matters would also be under consideration.

         (xiv)             On 19 September 2011 the Appellant wrote to the OTC from the correspondence address.  In relation to the letter marked ‘addressee gone away’ and letters dated 15 November and 7 December 2010, which he had not received he said that it “only shows the incompetence of the Royal Mail to do its job”.  He added that he would be attending the Public Inquiry with a letter, sent recorded delivery, and marked as ‘signed for’ which had been left in the post room but not ‘signed for’.

           (xv)             On 4 October 2011 the OTC wrote to the Appellant at the correspondence address.  The letter was sent recorded delivery.  It set out the result of the Public Inquiry held on 30 September 2011.  The Deputy Traffic Commissioner found that there had been breaches of some of the undertakings, in particular with regard to the Transport Manager.  She concluded that the Transport Manager had not had continuous and effective control and she directed that he should be removed from the licence with immediate effect.  A period of grace, until 14 January 2012, was allowed permitting the Appellant to operate without a nominated Transport Manager while a new Transport Manager was found and approved.  In relation to the issue of material change the Deputy Traffic Commissioner made no finding.  In particular on the question of contact with the Appellant she concluded that the Appellant had provided a reasonable excuse but the letter added: “Mr Hardy needs to establish a reliable method of receipt of communications”.  In addition the Deputy Traffic Commissioner accepted further undertakings, one of which was that the Appellant would attend an Operator Awareness training course by 30 January 2012 and submit a certificate of attendance to the OTC within 14 days of its receipt.  There is no record of the Appellant complying with this undertaking.  Finally the Appellant was given a formal warning.

         (xvi)             On the same day the OTC sent an email to the Appellant.  It recorded that the Appellant had requested, at the Public Inquiry, that the correspondence address should be changed from Unit 2 Dawsons Yard to Unit 1 Dawsons Yard.  The Appellant was requested to write to the Central Licensing Unit ‘OF’ Team at Hillcrest House, Leeds to give formal notification of the change.  The email concluded: “In the meantime, until the change has been made, this office will notify you by e-mail when correspondence has been posted to you”.

        (xvii)             On 21 February 2012 the OTC wrote to the Appellant at the original correspondence address.  The letter was sent by 1^st class post and recorded delivery.  There is no evidence of any email to notify the Appellant that this letter had been sent.  On 21 March 2012 the copy sent by recorded delivery was returned to the OTC.  It appears that a notice informing the Appellant that there was a letter to be collected was left on 23 February 2012 and that by 19 March 2012 it had not been called for.  The copy sent by 1^st class post was not returned.

       (xviii)             The letter of 21 February referred to the period of grace for the appointment of a new Transport Manager and pointed out that at the date of the letter no new Transport Manager had been nominated, nor had the Appellant notified the OTC that he had obtained the appropriate CPC qualifications.  The Appellant was required to inform the Deputy Traffic Commissioner of the current position by 2 March 2012.  In addition the Appellant was required, by the same date, to forward a copy of his certificate of attendance at an Operator Attendance course or, alternatively, provide a written explanation for his failure to attend.

          (xix)             It appears from an internal memorandum, prepared for the purpose of submitting the case to the Traffic Commissioner, that on 17 April 2012 the Traffic Commissioner directed that a letter should be sent to the Appellant warning him that the Traffic Commissioner proposed to revoke the operator’s licence, (unless the Appellant requested a Public Inquiry), on a number of grounds which included breaches of undertakings and the fact that the Appellant could not be contacted, On 18 April 2012 letters to this effect were sent to the correspondence address and the address of the operating centre. There is no indication as to whether or not any email was sent warning the Appellant about the letter.

           (xx)             The Appellant replied to the letter of 18 April 2012 in an undated letter received by the OTC on 16 May 2012.  The Appellant said that he had only received the letter of 18 April 2012 late on the afternoon of 10 May 2012 and that he had been given it at ‘Anderson, Unit 1 Ellistown’, (i.e. the unit next to the operating centre rather than the unit next to the original correspondence address, which he had notified as the new correspondence address).  He said that the fault lay with the OTC’s system and that it needed to be rectified.  He added that he had never received the letter of 21 February 2012 and he questioned why it had taken three months to establish further contact.  He then went on to explain that he had sent a letter to ‘the address stated above’, which was City House, 126-130 Hills Road, Cambridge, CB2 1NP.  He enclosed a receipt from the Post Office, which he said might explain why his letter to the OTC had not been delivered, (however it relates to a letter sent to Airport House in Croydon).  He described his difficulties in relation to the CPC examination and attached a receipt to show that he had enrolled on a course, which would take place on 25 May 2012. He also enclosed a failure notice for an email to the OTC on 15 May 2012.  The reason for the failure is that he had failed to use the correct email address for the member of staff at the OTC.

          (xxi)             Under the heading ‘Current Submission’ the memorandum continued:-

“Andrew Hardy alleges that he did not receive my reminder letter dated 21/02/12.  However, Royal Mail returned the copy sent by recorded delivery marked ‘not called for’ but the copy sent by 1^st class post has not been returned.

All correspondence for Mr Hardy has been sent to the correspondence address on OLBS, i.e. Unit 2 Dawsons Yard which is the address shown at the head of the operator’s letter received on 16/05/12.  There is a letter on file from Andrew Hardy dated 19/09/11 in which he blames Royal Mail for failing to deliver correspondence.  There is also an e-mail on file dated 4/10/11 sent by me notifying Mr Hardy that if he wishes to change his correspondence address from Unit 2 to Unit 1 he should notify Central Licensing in writing.  This has not been done (no correspondence has been scanned on OLBS since October 2011) so correspondence has been sent to Unit 2.  It is the responsibility of the operator to notify a change of correspondence address to Central Licensing.

Mr Hardy should not have required a reminder letter from OTC to fulfil the undertakings given at Public Inquiry on 30/09/11.  This operator is trying to deflect blame from himself to OTC by querying why it took so long to follow up Mr Hardy’s failure to respond to that letter of 21/02/12.  The operator has produced no evidence that he wrote to this office on 12/12/11 – certificate of posting was to Airport House CRO 0XZ (a search found this address is Purley Way, Croydon).  Mr Hardy appears to have submitted a certificate of postage in an attempt to prove that he wrote to OTC in December 2011.  I would suggest that this is a dishonest act on the part of the operator”.

The memorandum concluded with a recommendation that the licence should be revoked.

        (xxii)             The matter came before the Deputy Traffic Commissioner on 29 May 2012.  He concluded, in the light of the submission to which we have referred, that the letter of 18 April 2012 had been properly sent and received both by 1^st class post and recorded delivery.  He revoked the licence with effect from 2359 on 29 June 2012.  He did not order a Public Inquiry because the date for requesting one had passed without a request being made.

       (xxiii)             On 30 May 2012 the OTC wrote to the Appellant using the original correspondence address and the operating centre and sending letters to both addresses by 1^st class post and recorded delivery.  The letter explained that the Deputy Traffic Commissioner had concluded that the letter of 18 April had been properly sent and that the correspondence address at the Central Licensing Office was still Unit 2 Dawsons Yard.  It referred to the postage receipt and to the failed email and then set out the grounds on which the licence was revoked.  These were: (i) failure to fulfil undertakings given at Public Inquiry, (ii) material change, in that the Appellant was no longer contactable at the stated correspondence address and (iii) that the Appellant no longer met the requirements to have an effective and stable establishment in Great Britain and was no longer professionally competent.

       (xxiv)             On 7 June 2012 the Appellant telephoned the OTC.  He had received the letter of 30 May and wanted to know why the licence had been revoked.  The Appellant was aggressive and argumentative from the start but was nevertheless given a full explanation.  He blamed the Post Office for not delivering letters properly adding that he believed that he had explained the position at the last Public Inquiry and that he had asked for mail to the sent both by post and by email.  He said that the explanation for the address on the postal receipt was that the Post Office worker wrote it down incorrectly, because they were all incompetent.

        (xxv)             On 27 June 2012 the Appellant submitted a Notice of Appeal.  His grounds of appeal were, (i) that there had been no material change, because he was still contactable at the original correspondence address, if the Post Office delivered letters properly, (ii) that it had been decided at one Public Inquiry that all correspondence would also be sent by email, but that this had not happened, (he supported this ground with a request for transcripts of the Public Inquiries), (iii) that he would be appointing a new Transport Manager, as from 26 June 2012, and was awaiting the results of his own attempt to obtain a CPC qualification.

3.          At the hearing of the Appeal the Appellant appeared in person.  His main point was that there had been no material change in circumstances but that there had been long-standing problems over the delivery of letters, given that there were no individual post boxes for each business located at Dawsons Yard.  He insisted that it had been accepted at one of the Public Inquiry’s that letters should be sent to him by email but that, with one exception, this had not occurred.  He told us that the unreliability of postal deliveries meant that he had now arranged to collect his bank statements from the bank rather than risk losing them in the post.

4.          We stressed to the Appellant that the Tribunal has stated on many occasions that it is the responsibility of operators to ensure that letters from the OTC and other official bodies can be delivered to them and that it is important and in their own interests to ensure that the arrangements are both reliable and effective.  There may be occasions on which Traffic Commissioners will be prepared to accept an explanation for a single failure, (and the present case provides an example).  But once it is clear to an operator that the delivery of letters is unreliable it is their responsibility to take immediate steps first, to devise an alternative, which will provide an effective and reliable means of receiving letters and second, to inform the OTC and the Central Licensing Office, (“CLO”).  However operators must also bear in mind that the method of achieving the effective and reliable delivery of letters must be one which is acceptable to the OTC and the CLO, because they cannot expect to impose on those bodies a method of delivery which will be unworkable or unreasonably expensive.

5.          We also had to inform the Appellant that we were not permitted by Parliament to take into account the appointment of a Transport Manager or the result of his CPC examination.  The reason is that each of these matters is caught by the terms of paragraph 17(3) of Schedule 4 to the Transport Act 1985, as amended, (“the 1985 Act”), since these are ‘circumstances which did not exist at the time of the determination which is the subject of the appeal’.

6.          We are troubled by three aspects of this case that only emerged fully after setting out the chronology in some detail.  First, the detailed chronology prompts a number of questions to which there are no clear answers in the papers currently available.  Second, the Deputy Traffic Commissioner does not appear to have been informed about the indication that until a change of address had been made the Appellant would be notified by email when correspondence was sent to him.  Third, in deciding that both copies of the letter of 18 April 2012 had been received by the Appellant and that the Appellant had not requested a Public Inquiry within the time allowed the Deputy Traffic Commissioner does not appear to have taken into account the Appellant’s assertion that he only received the letter on 10 May, i.e. after the date for requesting a Public Inquiry had passed.

7.          Our first concern is that there are two questions which cannot be answered on the papers before us. First, there is no indication that an email was sent to the Appellant to alert him to the fact that the letter of 18 April had been sent, nor is there any evidence that emails were sent to alert him to any other letters sent after 4 October.  The email of 4 October 2012, from the OTC, concludes: “In the meantime, until the change has been made, this office will notify you by e-mail when correspondence has been posted to you”.  The underlining is ours and it is intended to stress that the sending of emails was to continue until the Appellant notified Leeds of the change of address.  Clearly some fault lies with the Appellant, because if he really did intend to change his correspondence address he never did anything about it.  But, in our view there is also fault on the part of the OTC who do not appear to have done what they said that they would do. Second, the Appellant was insistent that there was an agreement that he would be sent letters by email as well as post and that this agreement would be confirmed by obtaining a transcript.  He had, of course, requested transcripts in the Notice of Appeal.  He had raised this question earlier in the telephone conversation on 7 June 2012.  He was told on that occasion, understandably, that it would be his responsibility to pay for obtaining transcripts.

8.          Our second concern is that when referring to the email of 4 October 2011 in the memorandum the passage relating to notification by email, which we have quoted in paragraph 7 was omitted.  In our view that deprived the Deputy Traffic Commissioner of a vital piece of information.  Had this passage been drawn to his attention it seems to us that he would have been obliged to ask whether any email had been sent and, if the answer was ‘No’ he would then have been obliged to ask ‘why not’?  In our view the probable result of such inquiries is that the Appellant would have been given a further opportunity to request a Public Inquiry.

9.          Our third concern is that the Deputy Traffic Commissioner does not appear to have had regard to the fact that the Appellant was asserting that he only received the letter of 18 April 2012 on 10 May 2012.  Once the Traffic Commissioner was satisfied that the letters were correctly addressed and that they had been posted he was entitled to conclude that they had been correctly sent.  In the absence of any clear indication to the contrary he was entitled to conclude that they were received in the ordinary course of the post.  This is a draconian but necessary approach in order to ensure that operators who simply ignore correspondence can still be subject to disciplinary action.  However the principle must be operated fairly and it cannot be applied in cases where there is evidence of actual receipt on a date beyond the date when delivery might be expected in the ordinary course of the post.  The position in the present case is that the Deputy Traffic Commissioner was made aware in the memorandum that the Appellant was saying that he only received the letter on 10 May 2012, in other words the day after the last date for requesting a Public Inquiry.  The Deputy Traffic Commissioner appears to have disregarded this assertion, without giving reasons for disbelieving it, and, instead concluded that the letters had been delivered in the ordinary course of the post.  In our view that conclusion was plainly wrong, not merely, because that principle was not applicable until the Appellant’s assertion had been rejected, but also because of the other concerns which we have set out.

10.       Some, but not all, of our concerns could be answered by adjourning this appeal and requesting further information.  Our view is that this would be an unsatisfactory outcome partly because of the delay that would result and partly because if the appeal then succeeded it seems to us that it would, inevitably, have to be remitted so that a Public Inquiry could take place.  We have the power, if we consider it appropriate to do so, to remit the matter to the Traffic Commissioner for rehearing and determination, (see paragraph 17(2)(b) of the 1985 Act.

11.       In our view the appropriate course in this case is to remit the matter so that a Public Inquiry takes place sooner rather than later.  Any unanswered questions, if they remain relevant, can be answered in the course of that Inquiry.  All outstanding issues, in particular as to whether or not the Appellant still fulfils the statutory requirements, can then be fully considered, on their merits, in a way which the Tribunal would not be able to achieve.

12.       The Appellant would be very well advised to regard this decision as a ‘wake-up call’ rather then an indication that all is well in the best of all possible worlds.  The Appellant should approach the Public Inquiry on the basis that the Traffic Commissioner has grounds for serious concerns and that it is his responsibility to demonstrate, on the evidence, that they are, in fact, unjustified concerns.  He would do well to come to terms with the fact that he must take responsibility for his actions as an operator and for compliance with the regulatory regime.  He must understand that the Traffic Commissioner will be unimpressed by any attempt by the Appellant to blame everyone but himself for anything which has gone wrong.

13.       In particular we want to make it crystal clear that it is the Appellant’s responsibility to devise an effective and reliable means by which the OTC and other official bodies can correspond with him at an address at which letters will be received by him.  In doing so he must understand that he cannot impose on the OTC or others a system that they find unduly onerous, unworkable or unreasonably expensive.  Ideally he should devise such a system as a matter of urgency and then discuss and agree the method with the OTC and arrange for appropriate notification to the OLC.  If he fails to do this before the date of the next Public Inquiry he should not be surprised if the licence is revoked.  As a temporary measure the OTC should back up every letter sent to the Appellant with an email alert so that he can ensure that he is on the look-out for the letter.  We make this suggestion for purely practical reasons because we are aware that email in on the OTC’s normal method of communication.

14.       It is a matter for the Traffic Commissioner to decide whether or not a call-up letter is needed, but given the time that has passed and the changes that have occurred this may well be the sensible course.  It will be the Appellant’s responsibility to attend with whatever evidence is needed to satisfy the Traffic Commissioner in relation to the matters raised either by the letter of 18 April, if the Public Inquiry is to proceed on the basis of that letter, or the matters raised by a new call-up letter if one is issued.

15.       For these reasons the appeal is allowed and the order revoking the licence is set aside.  The matter is remitted to the Traffic Commissioner for rehearing and determination.

 

 

 

 

 

Michael BrodrickJudge of the Upper Tribunal, Principal Judge for Traffic Commissioner appeals, President of the Transport Tribunal.

31 October 2012, amended 13 December 2012