Neutral Citation Number: [2013] UKUT 426 (AAC)

Appeal No: T/2013/34

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF NICK DENTON, TRAFFIC COMMISSIONER

for the SOUTH EASTERN AND METROPOLITAN TRAFFIC AREA,

DATED 24/4/2013

 

 

Before:

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

Michael Farmer, Member of the Upper Tribunal.

 

 

 

Appellant:

BEAUTRIDGE HAULAGE LTD

 

 

 

Attendance:

For the Appellant: No attendance or representation

 

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 6/8/2013

Date of decision: 28/8/2013

 

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

The revocation will come into effect at 23:59 on 20 September 2013.

 

 

Subject matter:

Financial Standing

 

Cases referred to:

None

 

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area made on 24/4/2013 when he revoked the operator’s standard national goods vehicle operator’s licence under section 27(1) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

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 standard national goods vehicle operator’s licence authorising two vehicles, with two vehicles in possession. The principal director is Mrs Claire Sharp.

(ii)    The operator was granted an interim licence on 28/2/2012. Because of its history, the operator was requested to agree (and did agree) to a further condition:

 “The operator will provide the Traffic Commissioner with original bank statements and other financial documents (such as overdraft facility agreements or credit card statements) that show the licence holder has access to the appropriate funds for the size and type of licence. These documents are to be received at the office of the traffic Commissioner… by no later than 30/9/2012 and must fully cover the month of August 2012.”

(iii)  The operator failed to provide any financial documents by 30/9/2012, so the Central Licensing Unit in Leeds wrote to the operator on 11/10/2012 asking for the necessary documentation. Although a letter dated 22/10/2012 was received making representations, no suitable documentation was provided.

(iv)  The Central Licensing Unit sent a further letter on 8/11/2012, but the operator did not reply. On 28/2/2013 the Office of the Traffic Commissioner wrote to the operator indicating that he was proposing to revoke the licence and giving the operator a further opportunity to supply the required evidence or request a public inquiry, with a deadline given of 21/3/2013. Further written representations were made on 4/3/2013, but no suitable documentation was provided. The Traffic Commissioner decided to hold a public inquiry.

(v)   Mrs Sharp then stated that she would be unable to attend the public inquiry and, instead, enclosed documentation that was not relevant to the finances of the limited company that held the licence. The Office of the Traffic Commissioner made further attempts to engage with Mrs Sharp by telephone without success, and Mrs Sharp failed to appear at the public inquiry.

(vi)  The Traffic Commissioner noted in his decision that the company had failed to provide evidence of its financial standing by the deadline of 30/9/2012, and no satisfactory documentary evidence of finances had been submitted with the letters of 22/10/2012 and 4/3/2013. At the public inquiry, therefore, the Traffic Commissioner found that the finance condition on the licence had been breached, and that the operator had failed to demonstrate adequate financial standing as required.

 

3)     At the hearing of this appeal, there was no attendance or representation on behalf of the operator. We therefore decided to determine the appeal on the papers before us.

 

4)     The grounds of appeal are, essentially, confined to more representations of the kind made to the Traffic Commissioner. A printout of invoices submitted was sent in support of the appeal but, even now, no suitable evidence of appropriate financial standing has been made available. We have also carefully read a letter from an employee of the company, Mr Warren Fowler.

 

5)     We are surprised that, in this case, so much effort has been put into making emotive representations and so little effort into supplying what the Traffic Commissioner needed in order to satisfy the financial standing requirements.

 

6)     It is not necessary, as the appellant at one point suggested, that money be left unused and undisturbed in a bank account. As the Senior Traffic Commissioner’s Statutory Guidance makes plain, there are other possibilities - such as an overdraft facility (in operation rather than merely offered) where an unused balance is kept available over time, or there is evidence that money is owed to the operator which will be easy to collect, or the operator has other assets (other than authorised vehicles) or share-holdings, which can be turned into cash quickly if needed, so long as there is no adverse effect on the ability of the business to operate profitably. A factoring arrangement may (but will not necessarily) involve the retention of a reserve that can be deployed. And funds that are held back, or credit facilities that are unused - to be called upon only for maintenance emergencies - can obviously be used for such a purpose, provided the reserve provision is restored promptly.

 

7)     It is clear that the assets must either belong to the operator, or there must be some legally binding promise by, or obligation upon, any third party to make their assets available to an operator. Where a third party is involved, a Traffic Commissioner is entitled to look at their financial circumstances in the round, including their debts and liabilities. That said, subject to the appropriate binding statutory declarations or other legally enforceable arrangement, Traffic Commissioners may be willing to accept funds made available to the operator by other people or companies. A Traffic Commissioner might also accept a bank guarantee (not a simple letter but a formal business arrangement) or an insurance policy (including a professional liability insurance from a regulated financial institution) upon production of the documentation. In these circumstances, the terms of any statutory declaration, guarantee, investment or policy will need to be carefully examined.

 

8)     Given the willingness with which some credit card providers have, in the past, offered credit cards without thorough credit checks, Traffic Commissioners may be sceptical in accepting unused credit card facilities unless the credit card is used on a regular basis, is in the name of the operator, and no more than one or two such credit cards are relied on.

 

9)     Where evidence other than bank account or credit card statements is relied on this may necessitate referral to the Traffic Commissioner personally, but such referral is an opportunity for an operator to engage constructively, so that a full picture can be obtained.

 

10) The Senior Traffic Commissioner’s Guidance is currently available to the public on www.gov.uk - search for “senior traffic commissioner’s statutory guidance and directions”.

 

11) We are entirely satisfied that the Traffic Commissioner reached the only decision that he could, on the evidence before him at the public inquiry. Mrs Sharp failed to take advantage of the opportunities offered to properly engage with the Traffic Commissioner and to provide adequate evidence. The industry expects a level playing field with the same requirements imposed fairly on all operators. There is no reason why the tribunal should consider evidence not before the Traffic Commissioner but, even if we had, it would not have been sufficient to satisfy the statutory requirement. The appeal is dismissed. The revocation will come into effect at 23:59 on 20 September 2013.

Judge Mark Hinchliffe, DCP

28/8/2013