Neutral Citation Number:  [2013] UKUT 187 (AAC) Appeal No: T/2013/5

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE  DECISION OF KEVIN ROONEY, TRAFFIC  COMMISSIONER FOR THE NORTH EASTERN TRAFFIC AREA

DATED:  21 DECEMBER 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: S B  RECYCLING  LIMITED

 

 

Attendances:

For the Appellant: Mr M Nee, Transport Manager

 

 

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: Proof of financial standing

 

 

 

CASES REFERRED TO:  None

 

 

 

REASONS for DECISIONS

 

 

1. This is an appeal by S B Recycling Limited, the Company, against the decision of the Traffic Commissioner for the North Eastern Traffic Area dated 21 December 2012.  By that decision the Traffic Commissioner refused the Company’s application for a Goods Vehicle Operator’s Licence.

 

2. The Company was represented at the hearing by Mr M Nee, their Transport Manager. 

 

3. The factual background to this appeal appears from the documents on file, the Traffic Commissioner’s decision and information supplied orally by Mr Nee as follows:

 

(a) The Company made a new application for a Standard National Licence for three vehicles dated 8 October 2012 and received by the Office of the Traffic Commissioner, the Office, on 17 October 2012. 

 

(b) The financial requirement for the type of licence applied for and the number of vehicles covered by that licence is £16,100. 

 

(c) The Company submitted along with their application a computer printout of a bank statement.  That statement was not certified by the bank.  It showed three closing balances as follows:

 

£17.40 in debit on 5 September 2012

£155.40 in credit on 31 October 2012

£137.89 in credit on 5 October 2012

 

As well as that computer printout they also submitted a letter dated 11 October 2012 from MZ Factoring which read as follows:

 

“£30,000  FACILITY

 

We confirm that the above facility is available to yourselves under the name of S B Recycling Limited and that it has not been drawn down.”

 

That letter is signed by a director of M Z Factoring.

 

(d) On 26 October 2012 the Office wrote to the Company requesting the production to them among other information of original bank statements in the Company’s name for the last twenty eight days showing access by the Company to the financial requirement (mentioned above) of £16,100.

 

(e) In response, the Company resubmitted the letter from M Z Factoring the contents of which are reproduced in sub-paragraph (c) above.

 

(f) The Company were informed by the Office in a telephone call of 16 November 2012 that the above letter was unacceptable as it did not clearly explain what type of facility the Company had with the factoring company. The need to produce original bank statements was reiterated by the Office in that same telephone conversation.

(g) On 20 November 2012, the Office wrote to the Company again requesting the production of original bank statements in the Company’s name.  That letter also informed the Company that the Office required to see a full copy of the Factoring Agreement between the Company and M Z Factoring and additionally that M Z Factoring had to complete and return a factoring annex.

 

(h) On 30 November 2012 a further telephone conversation took place between the Company and the Office.  That conversation was recorded in a note made by a caseworker in the Office as follows:

 

“I spoke to the applicant today in regards to the letter from M Z Factoring and informed the operator that the letter was insufficient as it only stated the applicant had a facility of £30,000 and did not give any further details what type of facility this was.  The applicant stated that it was a loan agreement then he said it was a form of factoring above and beyond the factoring they had in place, I explained that if they had factoring in place we need to see a full copy of the agreement and a factoring annex would need to be completed.  The applicant then stated they were not using the factoring as proof of finances so the letter from M Z Factoring should be enough.  I again explained that the letter was vague and did not go in to any details what type of facility it was.  The applicant stated that he would get a full letter from M Z Factoring detailing what the facility is.  I informed the applicant that this would need referring up to the TC but if it was not acceptable the application may be refused.”

 

(i) The conversation referred to above was followed by an email from the Company dated 30 November 2012 asking for one week “to submit the financial details”.

 

(j) On 11 December 2012 the Company resubmitted the letter from M Z Factoring reproduced in sub-paragraph (c) above along with a further letter from M Z Factoring dated 3 December 2012 which read as follows:

 

“Re: S B Recycling Ltd

 We refer to our letter of 11 October 2012 a copy of which is attached.

To clarify the position this is not a factoring facility nor does it depend on SB Recycling Ltd having a factoring facility with us.

This is a stand alone loan facility we have agreed to make permanently available to SB Recycling Ltd to be drawn down by them as and when they need it.”

 

On the above date the Company also produced printouts of bank statements which were certified by the bank.  Those statements showed an average balance of £1,741 for the twenty eight days preceding 5 December 2012.  Further, they also demonstrated that that the average balance was only maintained by the Company lodging £4,320 on 16 November 2012 and then withdrawing £4,150 on 23 November 2012 and lodging £1,672 on 29 November 2012 followed by a withdrawal of £1,600 on 30 November 2012. 

 

(k) On 21 December 2012, the Traffic Commissioner refused the Company’s application on the basis that the evidence supplied by them of the requisite financial standing was incomplete.  In particular he held that the Company had not supplied the required information which had been requested from them in  the letters and telephone calls narrated in detail above. In particular, the Traffic Commissioner held that the precise details of the Company’s facility with MZ Factoring had not been made clear and that the Company’s average access to funds in their bank account only amounted to £1,741 over a twenty eight day period, the financial requirement being £16,100. 

 

4. In advance of a hearing the Company produced to this tribunal various documents from MZ Factoring.  In particular they produced a formal offer from that Company of a credit line of £30,000 dated 28 February 2013, an undated acceptance of that offer signed by a director of the Company and a resolution by the Board of the Company dated 1 March 2013 resolving to enter into the credit arrangement with MZ Factoring spelled out in the above offer.

 

5. We cannot take the above documentation into account in deciding this appeal.  That is because of the express provision of paragraph 17(3) of schedule 4 to the Transport Act 1985 that the Upper Tribunal “may not …. take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.”  The documentation described in paragraph 4 is not fresh evidence of circumstances prevailing at the time of the Traffic Commissioner’s determination of 21 December 2012 which is under appeal to us in these proceedings.   Rather it is evidence of new circumstances which are subsequent  to that date and did not then exist i.e. the establishment of a formal credit line for £30,000 formally offered to the Company by M Z Factoring and formally accepted by them.

 

6. On the information available to him at the time, the Traffic Commissioner’s decision taken in the circumstances we have narrated in detail in paragraph 3 above was clearly correct.  We thus uphold it and dismiss the appeal. 

 

7. Our decision does not preclude the Company from reapplying for a Goods Vehicle Operator’s Licence and requesting the issue of an interim licence in connection with that application.  The Company should however be aware that the determination of that new application will be in the hands of the Traffic Commissioner. 

 

 

 

 

 

A J GAMBLE

Judge of the Upper Tribunal

Date: 15 April 2013