Neutral Citation Number: [2013] UKUT 0186 (AAC) Appeal No: T/2012/73

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF NICK DENTON

TRAFFIC COMMISSIONER for the SOUTH EASTERN &

METROPOLITAN TRAFFIC AREA

DATED: 15 November 2012

 

 

 

Before:  Judge Alan Gamble, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant: MOHINDARPAL  SINGH

 

 

Attendances:

For the Appellant: The appellant appeared unrepresented

 

 

Appeal heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 15 March 2013

Date of decision: 15 April 2013

 

 

DECISION OF THE UPPER TRIBUNAL

 

The appeal is dismissed.

 

The decision of the Traffic Commissioner is upheld.

 

Subject Matter: Failure to respond to correspondence.

 

CASES REFERRED TO: Bespoke Construction (South East) Limited T/2012/70

 

 

 

 

 

 

REASONS  FOR  DECISION

 

1. This is an appeal against the decision of the Traffic Commissioner for the South Eastern & Metropolitan Area dated 15 November 2012 by which he revoked the appellant’s Goods Vehicle Operator’s Licence with effect from 14 November 2012. 

 

2. The appellant attended the hearing unrepresented. 

 

3. In advance of the hearing the appellant had lodged with the tribunal a sworn Affidavit dated 7 March 2013.  In that Affidavit he states that he had not seen or received at any time prior to the issue to him of the Upper Tribunal bundle some twelve documents generated by the Office of the Traffic Commissioner, the Office,’  between September 2011 and November 2012. Details of the most relevant and significant documents are narrated in paragraph 4 below. We saw no reason to doubt the truthfulness of the statement sworn by the appellant in his Affidavit.  In addition, the appellant gave oral evidence to the same effect  and added that he had not actually received any letters from the Office until that dated 15 November 2012 which notified him of the Traffic Commissioner’s decision to revoke his licence.  We accepted that evidence on balance of probabilities and find that the appellant did not actually receive any of the letters from the Office until that of 15 November 2012. However for the reasons given in paragraph 6 below that finding does not avail the appellant so far as success in this appeal is concerned.

 

4. The facts and circumstances relevant to this appeal appear from the documents on file, the Traffic Commissioner’s decision, the sworn Affidavit from the appellant and the appellant’s oral evidence as follows:

 

(a) The appellant has held a Goods Vehicle Operator’s Licence for some considerable time.  He acts as his own Transport Manager.  He has not actually operated at all as a goods vehicle operator since 2008.

 

(b) On 26 September 2011 a letter was sent to all operators and transport managers informing them of the impending implementation of EC Regulation 1071/2009 on 4 December 2011 and of the action which that implementation required of them.  That action included in the first place the completion of a Transport Manager’s questionnaire.  A copy of that questionnaire was enclosed with the above letter.

 

(c) The appellant did not respond to the letter of 26 September 2011.

 

(d) On 1 March 2012 a reminder letter was sent to all the operators and transport managers who had not responded to the letter of 26 September 2011. 

 

(e) The appellant did not respond to the letter of 1 March 2012.

 

(f) In view of the non-response from the appellant to the letter of 1 March 2012 the Office, on 16 July 2012 sent him at his operating address a letter by first class post and recorded delivery warning him that the Traffic Commissioner was considering serving notice on him that he was considering making a direction revoking his licence.  That letter gave an opportunity to the appellant to make representations in response to it by 6 August 2012.

(g) No response from the appellant was received to the letter of 16 July 2012.

 

(h) Accordingly on 16 October 2012, the Office wrote to the appellant both at his operating address and his home address, i.e. all his known addresses by first class post and recorded delivery serving notice on him that the Traffic Commissioner was considering making a direction revoking his operator’s licence. 

 

(i) No response was received to the letter dated 16 October 2012.

 

(j) In view of the non-response from the appellant, the Traffic Commissioner revoked the appellant’s operator’s licence on 15 November 2012 with effect from 14 November 2012.  The notification of that decision was sent by the Office to both of the addresses referred to above which were all the addresses known to the Office. That notification was sent to those addresses by first class post and recorded delivery.  The Traffic Commissioner took his decision because in view of the appellant’s failure to respond to the request for information about his nominated Transport Manager he could not be satisfied that the appellant complied with the requirements of Regulation (EC) 107/2009 which came into force in December 2011.

 

(k) The first communication from the Office which the appellant actually received was the letter dated 15 November 2012 notifying him of the revocation of his operator’s licence. Even then, his evidence was that the letter had been received by a neighbour who did not bring it to his attention until 7 December 2012.

 

5. The appellant to his credit candidly informed us that it was his view that the Office had done all that they could to contact him.  He also informed us that he had had experienced postal problems.

 

6. We consider that the Traffic Commissioner’s decision was plainly correct given the lack of response by the appellant to the letters of 26 September 2011, 1 March 2012, 16 July 2012 and 16 October 2012, described in detail in paragraph 4 above.  It is of considerable importance that the letters of 16 October 2012 and 15 November 2012 were sent by the Office by first class post and recorded delivery to both of the addresses for the appellant which they held. In our view, the appellant was clearly given adequate notice of the step the Traffic Commissioner was minded to take i.e. revocation of his licence albeit he did not actually receive notice of that step before it was taken.  In this connection we agree with the comments made by the Upper Tribunal in Bespoke Construction (South East) Limited, T/2012/70 paragraph 4 where matters are put thus:

 

“In our view the OTC (“Office of the Traffic Commissioner”) 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 first class post and recorded delivery.  In our view that approach cannot be faulted.” 

 

Our conclusion in this appeal is to exactly the same effect.

 

7. For the reasons given above, the appeal is dismissed and the Traffic Commissioner’s decision is upheld.  The appellant is advised that this decision does not preclude him from applying for a fresh Goods Vehicle Operator’s Licence and seeking an interim licence as part of that application.

 

 

 

 

A J GAMBLE

Judge of the Upper Tribunal

Date: 15 April 2013Howev