Neutral Citation Number: [2012] UKUT 408 (AAC)

Appeal No.  T/2012/47

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF Simon Evans Deputy Traffic Commissioner for the North Western Traffic Area

Dated 18 July 2012

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Appellant:

SUSAN TATTERSALL

Attendances:  The Tribunal has decided, pursuant to Rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, to make a decision in relation to this appeal without a hearing.

Date of decision: 9 November 2012

DECISION OF THE UPPER TRIBUNAL

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

REASONS FOR DECISION

1.               This is an appeal from the decision of the Deputy Traffic Commissioner for the North Western Traffic Area to refuse the Appellant’s application for a new standard national goods vehicle operator’s licence for 3 vehicles.

2.               On 28 August 2012 the Appellant appealed against that decision.  She applied for and was given permission to appeal out of time.  Appeal bundles were then prepared.

3.               When the Traffic Commissioner came to check the appeal bundles she found that there had been a number of procedural irregularities in her office.  She set these out in a document, dated 1 October 2012, which she sent to the Tribunal.  She suggested that the pragmatic way to deal with the matter was to offer the Appellant an opportunity to set out her case at a new Public Inquiry.

4.               The matter was drawn to my attention.  I agreed with the sensible and responsible course suggested by the Traffic Commissioner.  However I took the view that it was not sensible to have an appeal outstanding before the Tribunal when the matter was being reheard by the Traffic Commissioner.  As a result the Appellant was invited to withdraw her appeal.  To date there has been no response to that invitation.

5.               At the same time the Office of the Traffic Commissioner has been attempting, without success, to arrange a new date for the Appellant’s case to be considered at a Public Inquiry.  Again there has been no response from the Appellant.

6.               It is now rather more than a month since the procedural irregularities were discovered and no progress has been made.  In my view that is not a state of affairs which can be permitted to continue because the call-up letter in relation to this application goes back to 8 March 2012.

7.               I have therefore decided to deal with the appeal without a hearing in accordance with Rule 34(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008.  In view of the procedural irregularities which have come to light it has become apparent that it was plainly wrong to deal with this application without a hearing.  No blame attaches to the Deputy Traffic Commissioner because he was not provided with all the material which should have been put before him.  Had he been given that material it is, in my view, inconceivable that he would have continued to deal with the matter.  The appeal is therefore allowed.

8.               The next question is whether I can deal with the matter on the material before me or whether the appropriate course is to remit the matter for rehearing.  I am quite satisfied that that I cannot, fairly and justly, deal with the matter on the evidence before me because it is incomplete.  The appropriate course, in my judgment is to remit the matter for rehearing.

9.               The Appellant must understand that the Traffic Commissioner will wish to arrange a date for a Public Inquiry in the near future.  The Appellant has a responsibility to play a constructive part in that process.  If she fails to do so and fails, (without a compelling and convincing explanation), to attend a new Public Inquiry, she runs a very real risk that the application will again be rejected.  The Appellant would also be well advised to make sure that she has collected together all the material requested by the Traffic Commissioner and that she provides it within the timescale set down by the Traffic Commissioner or her office.

His Hon. Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

9 November 2012.