Neutral Citation Number: [2013] UKUT 386 (AAC)

Appeal No.  T/2013/23

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Sarah Bell TRAFFIC COMMISSIONER for the West of England

Dated

Before:

His Hon. Michael Brodrick, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

Appellant:

IAN CHARLES HOPKINS t/a HOPKINS SCAFFOLDING

Attendances:

For the Appellant: the Appellant appeared in person

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 26 July 2013

Date of decision: 7 august 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

SUBJECT MATTER:- Financial resources

CASES REFERRED TO:- None

REASONS FOR DECISION

1.           This is an appeal from the decision of the Traffic Commissioner for the West of England to refuse the Appellant’s application for a restricted heavy goods vehicle operator’s licence.

2.          The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-

(i)                   On 3 August 2012 the Appellant applied for a restricted heavy goods vehicle operator’s licence authorising one vehicle.  The application indicated that an independent contractor would carry out safety inspections and maintenance.

(ii)                 On 4 October 2012 the Office of the Traffic Commissioner, (“OTC”), acknowledged receipt of the application and requested further documents to support several aspects of the application.  In particular the OTC pointed out that the bank statements submitted were not acceptable because they were more than 2 months old and they were copies, not originals.

(iii)                On 23 October 2012 the OTC again wrote to the Appellant requesting the same information.  The letter went on to state that it was intended as a final attempt to resolve the outstanding issues but that if a full response was not received by 6 November 2012 the application would be refused.

(iv)                On 31 October 2012 the Appellant replied.  A number of documents were enclosed, including original bank statements for the period 13 July 2012 to 15 October 2012.

(v)                 On 22 November 2012 the application was referred to the Traffic Commissioner.  Those responsible for processing the application were satisfied, by that stage, that all the outstanding issues had been resolved save for finance.  The summary of the position was that while the original out of date copy bank statements did show sufficient money in the Appellant’s bank account the most recent, original bank statements, did not.  The Traffic Commissioner agreed with the suggested course of action, which was to write to the Appellant giving him one further chance to meet the financial requirement.

(vi)                On 29 November 2012 the OTC wrote to the Appellant informing him that the Traffic Commissioner was proposing to refuse the application unless documentary evidence on two points was provided by 13 December 2012.  The first point concerned financial resources and the second concerned confirmation as to the acquisition of the vehicle specified in the application.

(vii)              On 10 December 2012 the Appellant supplied original up to date bank statements and explained that he had bought the vehicle at auction.  Documents supporting that explanation were provided.

(viii)             On 1 March 2013 the matter was again referred to the Traffic Commissioner.  By that stage the only cause for concern was that there was still insufficient evidence to establish the amount needed to satisfy the requirement for financial resources.  In a telephone call on 22 January 2013 the Appellant was told that evidence such as credit cards could be taken into account, in addition to bank accounts.  The Appellant was given a further 7 days in which to provide more evidence, but nothing was forthcoming.  In the absence of satisfactory evidence to show the required level of financial resources the Traffic Commissioner agreed with the recommendation that the application should be refused.

(ix)                On 4 March 2013 the OTC wrote to the Appellant to inform him that the application had been refused on the ground that it remained incomplete at the time that the deadline for submitting further financial evidence expired.

(x)                 On 27 March 2013 the Appellant appealed against that decision.  In his grounds of appeal the Appellant said that he had applied to his bank for an overdraft facility of £3,000 and that he had just received confirmation that the facility had been granted.  Attached to the Notice of Appeal was a letter dated 14 March 2013, from his bank, confirming that the overdraft had been granted.

3.           The Appellant appeared in person at the hearing of the appeal, supported by a friend, Mr Maxfield.  We asked the Appellant whether he had explained to the OTC that he had applied for an overdraft and that he was waiting for a decision from the Bank.  He replied that he had not done so.  In our view this was unfortunate.  Had the OTC been aware that the Appellant was waiting for an answer from his bank it seems to us that the probability is that more time would have been allowed.  In the event  we were then obliged to explain to him that the terms of paragraph 17(3) of Schedule 4 to the Transport Act 1985 meant that we are not permitted to: “take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  Unfortunately for the Appellant the overdraft was granted 10 days too late and, as a result the Traffic Commissioner was unaware of it.

4.           In those circumstances the appeal must be dismissed.

5.           We went on to explain to the Appellant that if he wished to operate a goods vehicle with a gross plated weight exceeding 3.5 tonnes he must make another application for an operator’s licence.  We urged him to submit all the required documentation with the new application on the basis that it would be unwise to assume that the OTC would be prepared to take documents from the original file in order to fill any gaps in the material supporting the new application.  We advised the Appellant that it was open to him to apply for an Interim Licence but that the question of whether or not such a licence could be granted was a matter for the Traffic Commissioner.

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

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

7 August 2013