Neutral Citation Number: [2013] UKUT 389 (AAC)

Appeal No.  T/2013/31

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nicholas Denton TRAFFIC COMMISSIONER for London and the South East of England

Dated 9 April 2013

 

 

 

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:

TARIQ MEHMOOD AKHTAR

 

 

 

 

Attendances:

For the Appellant: The Appellant appeared in person, assisted by  Mr Hasan Khan

 

 

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:-  Revocation on discretionary grounds including breach of undertakings and material change in circumstances

 

 

CASES REFERRED TO:- None

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for London and South East of England to revoke the 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 heavy goods vehicle operator’s licence authorising two vehicles.  His correspondence address was given as 37 Sunnymead Road, London, NW9 8BT.  His operating centre was at 1 Compound and Office, Lumen Road, East Lane Business Park, Wembley, HA9 7NB.

(ii)                 On 26 February 2013 the Office of the Traffic Commissioner (“OTC”), wrote to the Appellant at the correspondence address and also to the operating centre.  The letter referred to a maintenance investigation, which was carried out on 23 January 2013.  Following the maintenance investigation the Vehicle Examiner expressed concern about a number of shortcomings.  These were, (i) a change of Maintenance Contractor six months earlier, with no maintenance contract available, (ii) failure to sign the roadworthiness declaration on PMI records, (iii) that a forward planning system for Preventative Maintenance Inspections was not in use, (iv) an ‘S’ marked prohibition and a fixed penalty issued on 22 November 2012 for lamp defects, (v) the Appellant was unable to provide PMI records for a full 15 months, and in respect of one vehicle only one PMI record was available, and (vi) on 22 November 2012 an Offence Prohibition was issued for failing to keep records.  The Appellant failed to respond to the PG13G notice which he was given at the end of this unsatisfactory investigation.

(iii)                The letter of 26 February 2013 went on to explain the various grounds on which the Traffic Commissioner could take action.  In particular the fact that the statement of intention that vehicles would be kept fit and serviceable and that records would be kept for 15 months had not been kept, the undertaking to keep vehicles fit and serviceable and to keep records for 15 months and to make them available had not been fulfilled and that there had been a material change in circumstances in that the Appellant had failed to respond to correspondence.  The letter offered the Appellant the opportunity to request a Public Inquiry but warned that if no such request was made before 19 March 2013 the licence would be revoked.

(iv)                The letter was sent to both known addresses by First Class post and Recorded Delivery. Both the letters addressed to the operating centre were returned, though it is unclear whether the reason, in each case, was ‘address incomplete’ or ‘address inaccessible’.  The address on each envelope was exactly the same as that for the operating centre, including the full postcode.

(v)                 On 10 April 2013 the OTC wrote to the Appellant at the correspondence address.  The letter referred to the letter of 26 February 2013 and to the Appellant’s operator’s licence, which was given as OF1091846.  The letter pointed out that no request for a Public Inquiry had been made and explained that, as a result: “the Traffic Commissioner revoked this licence in chambers on 28 April 2011, with effect from that date, under sections 26(1)(e)(f) & (h) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].

(vi)                On 12 April 2013 the Appellant replied by email.  He said: “I am writing to inform you that your letter of 26 February 2013 was not received by me, I can assure you that I was completely unaware of the maintenance investigation that was going on during that time therefore I was unable to make any requests for the public inquiry to be convened”.

(vii)              On 22 April 2013 the Appellant sent a further email in response to the letter of 10 April 2013.  He pointed out that the licence number quoted in that letter, OF1091846, was not the number of his licence, which was OK1107020.  In addition he questioned the fact that the licence was said to have been revoked on 28 April 2011 when it had only been granted in August 2011.  He again pointed out that he had not received the letter of 26 February and asked for urgent clarification.

(viii)             On 24 April 2013 the OTC replied apologising for the errors and attaching an amended letter giving the correct licence number and a revocation date of 9 April 2013.

(ix)                On 26 April 2013 the Appellant appealed to the Tribunal.  In his grounds of appeal he stated that he had not received the letter of 26 February 2013.  He went on to say that if he had received it he would have requested a Public Inquiry and would have produced any information required to clarify the position.  He asked for a list of the documents that needed to be produced in order to keep his operator’s licence.

3.           At the hearing of the appeal the Appellant appeared in person.  In view of the fact that English is not the Appellant’s first language Mr Hasan Khan attended to help the Appellant and we are grateful to him for his assistance.  Given the possibility that the Appellant might find it difficult to make himself understood in the course of the hearing he helpfully provided the Tribunal with a typed document setting out his case.

4.           In relation to the maintenance investigation the Appellant accepted that he was aware that a Vehicle Examiner had attended and conducted such an examination but due to the language difficulties he failed to understand what this meant, or its implications.  In addition it was accepted that he had failed to understand that he was required to respond to the PG13G notice, which he was given at the end of the investigation.

5.           In relation to the correspondence sent to the operating centre the Appellant pointed out that one copy of the letter was returned to the OTC on 4 March 2013 and the other copy was returned on 8 May 2013.  In each case, according to the Appellant, the reason given was that the address was incomplete, though no indication is given as to what had been left out.  It was accepted that at the relevant time the Appellant still lived at the correspondence address and still used the operating centre.  However he reiterated that he had not received either copy of the letter sent to the correspondence address.

6.           The statement went on to set out the subsequent history, which we have already summarised above.  It concluded by submitting that had the Appellant received the letter of 26 February 2013 the Appellant would have requested a Public Inquiry.  In those circumstances the Tribunal was invited to remit the matter to be heard at a Public Inquiry.

7.           Between them the Appellant and Mr Khan added some additional detail to the contents of the statement.  They told us that essentially what the Traffic Commissioner said was correct but that since the revocation of the licence the Appellant had put his house in order.  They added that at one stage the Appellant had been in ‘partnership’ with someone who had dealt with licensing matters but that that situation had ended.  Finally they made it clear that the Appellant now understood the importance of responding to VOSA and the OTC.  We have put ‘partnership’ in inverted commas because that was the word used.  However we did not attempt to ascertain whether it was being used in the strict legal sense.

8.           We explained to the Appellant that it was for him to satisfy us that the decision reached by the Traffic Commissioner was plainly wrong.  We also explained that we were required to decide the appeal on the basis of the material available to the Traffic Commissioner at the time that he reached his decision.  We pointed out that the Tribunal has repeatedly stated that operator’s licensing is based on trust and that it is the responsibility of operators to ensure (a) that they have in place a reliable method of receiving importance correspondence and (b) that they reply to letters from the OTC and/or respond to requests for information from VOSA or other official sources.  We also pointed out that if the Traffic Commissioner writes to the correct address or to all known addresses he is entitled to assume, until satisfied that the assumption would be false, that the letter will have arrived in the ordinary course of the post.

9.           It follows, in our view, that the Traffic Commissioner was entitled to assume that the letters sent to the correspondence address were received by the Appellant a few days after 26 February 2013 and that nothing had happened to invalidate that assumption by 9 April 2013, the date on which he decided to revoke the licence.  That being the case we are not persuaded that the decision to revoke the licence was plainly wrong, from which it follows that the appeal must be dismissed.

10.        If the Appellant needs to use a vehicle or vehicles with a gross plated weight of more than 3.5 tonnes he must apply for a new licence.  He would be well advised to provide all the material necessary to support that application, even though he may believe that the OTC already has some of it on the file relating to the current licence.  In addition he should be prepared to explain to the OTC the steps he has taken to ensure that letters will be received, understood and answered and that other important requests will be attended to appropriately.

 

 

 

 

 

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

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

7 August 2013