Neutral Citation Number: [2013] UKUT 116 (AAC)

Appeal No.  T/2012/70

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Richard Turfitt TRAFFIC COMMISSIONER for the EasternTraffic Area

Dated 11 October 2012

 

 

 

Before:

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

Leslie Milliken, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

 

 

Appellant:

BESPOKE CONSTRUCTION (SOUTH EAST) Ltd.

 

 

 

 

Attendances:

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

 

 

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

Date of hearing: 15 February 2013

Date of decision: 4 March 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

SUBJECT MATTER:-   Miscellaneous, breach of conditions, material change in circumstances, failure to respond to correspondence.

 

 

CASES REFERRED TO:- None

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area to revoke the restricted 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 restricted goods vehicle operator’s licence authorising one vehicle, with an operating centre at Weald View, Lincoln’s Lane, South Weald, Brentwood, Essex, CM14 5QT.

(ii)                 In its application for an operator’s licence, dated 21 September 2010, the Appellant gave the Weald View address as its correspondence address, (“the correspondence address”).

(iii)                On 7 February 2011 the Central Licensing Unit, (“the CLU”) wrote to the Appellant to inform it that the application for an operator’s licence had been granted, subject to two conditions.  The first was that the authorised vehicle should not exceed 7.5 tonnes gross vehicle weight.  The second was that the Appellant would provide, by 31 August 2011: “three months bank statements and other financial details (such as overdraft facility agreements or credit card statements) that show the licence holder has access to sufficient funds to ensure that vehicles used under the licence are kept maintained in a fit and serviceable condition”.  The details were required to cover the months of May, June and July 2011.

(iv)                On 3 February 2011 the Appellant replied, from the correspondence address, accepting the conditions on which the operator’s licence had been granted.

(v)                 On 31 January 2012 the CLU wrote to the Appellant, at the correspondence address, requesting financial evidence in the form of three months original bank statements, in the name of the limited company, any overdraft limit in place and original credit card statements.  The letter ended with the warning that failure to respond might result in regulatory action against the licence.  A reply was requested by 14 February 2012.

(vi)                The Appellant provided bank statements for the period 7 November 2011 to 16 February 2012.  They satisfied the requirement of being in the Appellant’s name but they were not satisfactory in other respects.  First, they were duplicates not originals.  Second, the average balance was insufficient to satisfy the requirement for one vehicle authorised under a restricted licence.  Indeed it was only as a result of a substantial credit on 16 February 2012 that the account came close to the amount required.

(vii)              On 29 March 2012 the CLU wrote to the Appellant at the correspondence address.  The request for three months original bank statements was repeated and the fact that the statements had to be originals was stressed.  The letter added that copies were inadmissible unless stamped and signed by the bank.  The warning was repeated and the Appellant was required to respond by 12 April 2012.

(viii)             On 6 June 2012 the caseworker telephoned and spoke to Mr Jopson, a director of the Appellant company.  She told him that the original bank statements were still outstanding.  When he replied that he had sent bank statements she explained that he had sent copies but that the letter required originals.  He was told that no more than another seven days could be allowed and that if original bank statements were not received there would be no option other than to revoke the licence.

(ix)                The Appellant then supplied original bank statements for several different accounts, some were in the name of the Appellant company but another was in the name of Mr Jopson and his wife.  The amounts involved were not sufficient to meet the minimum figure required for one vehicle authorised under a restricted licence.

(x)                 On 26 June 2012 the caseworker submitted a summary of the matters set out above to the Traffic Commissioner.  The recommendation was that a letter should be sent to the Appellant indicating that in the absence of satisfactory financial evidence the Traffic Commissioner proposed to revoke the licence on the grounds that there had been a breach of the condition to provide financial evidence, on the basis of which the licence had been granted, and that there had been a material change in the Appellant’s financial circumstances.

(xi)                On 6 September 2012 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant.  The letter was addressed to the correspondence address and was sent by 1^st class post and recorded delivery.  It was also sent, again by 1^st class post and recorded delivery to 19 Blackwood Chine, South Woodham Ferrers, Chelmsford, CM3 5FZ, the Registered Office of the Appellant company, (“the registered office”).  The letter referred to the inability of the Appellant to provide financial evidence and set out the two grounds on which the Traffic Commissioner was minded to take action.  It went on to explain that the Appellant had the right to request a Public Inquiry but that if it wished to invoke that right it must do so by 27 September 2012.  It pointed out that if there was no request for a Public Inquiry the licence would be revoked.

(xii)               By 5 October 2012 no request for a Public Inquiry had been received, nor had any further financial evidence been provided.  As a result the matter was again referred to the Traffic Commissioner.  He noted that the Appellant had failed to meet the condition on which the licence was granted, namely the production of financial evidence and that there had been a material change in circumstances.  He revoked the operator’s licence on those grounds.

(xiii)             On 11 October 2012 the OTC wrote to the Appellant at the correspondence address and the registered office.  Letters to each of these addresses were sent by 1^st class post and recorded delivery.  The letters were identical and they informed the Appellant that the licence had been revoked.  The recorded delivery letter to the correspondence address was returned marked “not called for”.

(xiv)             On 29 October 2012 the OTC received a letter from Mrs Jopson saying that she was writing on behalf of her husband.  She said: “There has been confusion as all mail regarding my husband’s operators licence has been going to our Accountant Shirley Smith & Co, 19 Blackwood Chine, South Woodham Ferrers, Chelmsford, CM3 5FZ.  I am not quite sure how this has happened but we have not been receiving all correspondence due to our letters going to the wrong address”.  She went on to say that they had only just received, (from the Accountant), the letter regarding the revocation of the operator’s licence, which they wished to discuss.

(xv)              On 5 November 2012 the OTC wrote to Mr Jopson at the correspondence address.  The letter pointed out that this was the address shown on the application for the licence and on the licence itself and that failure to inform the Traffic Commissioner of a change of correspondence address is, in itself, a breach of a condition of the licence.  The letter concluded by saying that as the licence had been revoked the only option open to the Appellant was to appeal to the Upper Tribunal.

(xvi)             On 8 November 2012 Mr Jopson wrote to inform the OTC of a slight change in the postcode for the correspondence address, (the last two letters having changed from QT to RS).  He added that the address was, in all other respects, the same.

(xvii)            On 15 November 2012 the Appellant filed a Notice of Appeal.  The grounds of appeal were that: “All letters regarding operator’s licence have been going to my Accountant’s address therefore important letters regarding my operators licence were not received leading to the revocation of the licence”.

3.           The appeal was listed for hearing on 15 February 2013.  By 12.15 pm when the appeal was called the Appellant was neither present nor represented.  No message had been received from the Appellant either to request an adjournment or to explain its non-attendance.  In those circumstances the Tribunal decided to determine the appeal in the absence of the Appellant.

4.           We have set out the full history of the matter because it makes it clear that all relevant letters were sent to the correspondence address and that it was only the letters of 6 September 2012 and 11 October 2012 which were sent, in addition, to the registered office.  It follows that the assertion made in the Notice of Appeal that “all letters” had been sent to the Accountant’s address is plainly wrong.  In our view the OTC took the sensible and appropriate course of sending the two most important letters, (“the Traffic Commissioner is minded to revoke the licence” and “the Traffic Commissioner has revoked the licence”) not only to the correspondence address but also to the Appellant’s registered office.  In addition they took the sensible and appropriate course of sending both letters by 1^st class post and recorded delivery.  In our view that approach cannot be faulted.

5.           One of the standard undertakings given by a person applying for an operator’s licence is that the operator will ensure that the Traffic Commissioner is notified, within 28 days, of “any other changes”.  While the examples given do not include change of address it has always been understood, (rightly in our view), that this is included within this undertaking.  It follows that when the CLU or the OTC write to an operator at the correspondence address held by either of these bodies Traffic Commissioner’s are entitled to rely on such letters being received by the operator in the ordinary course of the post.  There are however circumstances were it would be unfair and inappropriate to rely on that general rule.  One example would be where it is clearly shown that an operator notified a change in correspondence address but the CLU or the OTC failed to bring the address up to date.  That does not apply here.  Another would be where an operator replies after the expiry of a deadline but gives a good reason why the reply is late.  Again that does not apply here.  A third possibility arises where the information available to the CLU, the OTC or the Traffic Commissioner indicates that an operator will not receive letters sent to the correspondence address but will receive those sent to another address known to the CLU, the OTC or the Traffic Commissioner.  Again this does not apply here.

6.           The question we have to decide is whether the decision of the Traffic Commissioner was plainly wrong.  The operator’s licence was granted subject to the condition set out in paragraph 2(iii) above.  Despite a number of requests and considerable patience on the part of the CLU and the OTC the Traffic Commissioner was never provided with the information required to satisfy that condition.  Such information as the Appellant did provide failed to demonstrate that sufficient funds were available to meet the minimum requirement for the financial resources required for a restricted operator’s licence.  In those circumstances our view is that the Traffic Commissioner had no option other than to revoke this licence on the grounds that the Appellant had broken the condition on which it was granted.

7.           In addition it seems to us that the limited information that was provided clearly showed that for the whole of the period covered by these bank statements, which were provided, there was never sufficient money to establish the amount required.  There was only one day on which the credit balance came within less than £100 of what was required.  In those circumstances it seems to us that the Traffic Commissioner was also entitled to conclude that there had been a material change in the circumstances of the Appellant, in that it no longer had sufficient financial resources to ensure that the provision of facilities and arrangements for maintaining the vehicles in a fit an serviceable condition would not be prejudiced.

8.           For all these reasons we are satisfied that the decision to revoke this operator’s licence was plainly right.  Accordingly the appeal is dismissed with immediate effect.

 

 

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

Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.

4 March 2013