Neutral Citation Number: [2013] UKUT 485(AAC) Appeal No.  T/2013/41

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Kevin Rooney, Traffic Commissioner for the

North East Traffic Area dated 3 June 2013

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

 

 

MATTHEW SHEARD & SONS LIMITED

 

 

Attendances:

For the Appellant: No appearance 

 

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

Date of hearing: 17 September 2013

Date of decision:  25 September 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that this appeal be DISMISSED

 

 

 

SUBJECT MATTER:-  Revocation of licence; material change; failure to respond to request to submit an original CPC certificate within the specified time

 

 

CASES REFERRED TO:-  None

 

REASONS FOR DECISION

 

 

1.           This was an appeal from the decision of the Traffic Commissioner for the North Eastern Traffic Area made on 3 June 2013 when he revoked the Appellant’s standard national operator’s licence under s.26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

 

2.           The factual background appears from the documents and the Traffic Commissioner’s decision letter and is as follows:

 

(i)              The Appellant has held a standard national operator’s licence since 1993.  David Sheard, who is a director of the Appellant company, has been the nominated transport manager since the grant of the licence. 

(ii)             By a letter dated 13 October 2012, the Appellant company was advised by the Office of the Traffic Commissioner (“OTC”) that two previous letters had been sent to the Appellant requesting information about the company’s nominated transport manager, the purpose of the requests was for the Traffic Commissioner to satisfy himself that the Appellant complied with the requirements of Regulation (EC) 1071/2009 which came into force in December 2011.  The Appellant was warned that the Traffic Commissioner was considering making a direction under s.26(1)(h) of the Act to revoke the company’s licence on the grounds that there had been a material change since the licence was issued, namely that the company may have ceased to operate or had changed address without advising the Traffic Commissioner of an updated address.  Further, the Appellant was warned that the Traffic Commissioner was considering making a direction revoking the company’s licence under s.27(2) of the Act by reason of the company no longer satisfying the requirements of s.13A(2) of the Act and/or that its nominated transport manager failed to meet the requirements of s.13A(3) of the Act.  The Appellant was advised that it had until 3 November 2012 to make representations or to request a public inquiry. 

(iii)            On 16 October 2012, David Sheard wrote to the OTC stating:

“Thank you for sending me 6 (yes 6) copies of the attached letter threatening to take my operator’s licence, which I have held for nearly 30 years.  I returned your original questionnaire on 27/9/11.  I couldn’t supply my CPC number as I have misplaced the certificate.  I have never needed the certificate since I became the operator here.  You must have the number since it must have been supplied when I got my licence.  I am now trawling the internet trying to obtain a replacement/copy certificate.  It would be easier if you could send me the number from your records ..”

(iv)           On 5 November and 20 November 2012, a caseworker attempted to contact the Appellant by telephone.  No one answered the calls.  As a result, on 20 November 2012, a further letter was sent to the Appellant .  The letter again referred to the changes in the law affecting transport managers that came into force in December 2011.  The letter went on:

“You and your transport manager must complete the enclosed form TM1 and return it to this office with your transport manager’s original certificate of professional competence in road haulage operations by 04/12/2012.  You must also explain why you failed to respond to the previous transport manager questionnaires sent in September 2011 and March 2012.  We have carried out a full search of your licence file.  Unfortunately we do not hold a copy of your CPC certificate on file so we are unable to provide you with your certificate number.”

(v)             No response was received to that letter and as a result, a further copy of the letter was sent to the Appellant on 11 December 2012, this time giving the Appellant until 27 December 2012 to complete and return form TM1 along with Mr Sheard’s original CPC certificate.  The letter concluded:

“If you fail to comply with this request, regulatory action may be taken against your licence.  You are strongly advised to ensure full compliance with this request within the stated deadline”. 

No response was received from the Appellant.

(vi)           On 26 February 2013, a further attempt was made to contact the Appellant by a case worker within the OTC.  There was again no answer. 

(vii)          On 21 March 2013, a submission was made to the Traffic Commissioner with the following recommendation:

“Mr Sheard has been listed as the transport manager on this licence for some time and he has explained that he is unable to locate his certificate of professional competence and there is no copy on file.  Mr Sheard has also explained that he returned the TM questionnaire in September 2011 although I cannot find any record of this.

Propose to revoke letters have previously been sent by the North East OTC to which the operator did respond however, he has failed to respond to further letters sent by the CLO and attempts to contact the operator via telephone have been unsuccessful. I recommend that the operator is given one final opportunity to provide a duplicate certificate and a completed TM1 form and TM questionnaire and that they are informed that if no response is received, the licence will be revoked by the traffic commissioner under section 26(1)(h).

Deputy Traffic Commissioner Perrett agreed with the recommendation.

(viii)         On 26 March 2013, the OTC wrote to the Appellant referring to the previous letters to which there had been no response.  The letter made clear that failure to respond to it would lead to revocation of the licence under s.26(1)(h) of the Act.  The documents referred to in the recommendation set out in sub-paragraph (vii) above were requested  and it was made clear that the Appellant must respond to the letter no later than 9 April 2013. 

(ix)           On 5 April 2013, Mr Sheard telephoned the OTC and explained that he did not have his original CPC and that he had not applied for a duplicate.  He was given options as to how to proceed but Mr Sheard asked to speak to the North Eastern Licensing Team Leader. 

(x)             On 8 April 2013, a case worker spoke to Mr Sheard on the telephone and told him that he must apply to the Examination Body which issued his CPC for a duplicate.  On 9 April 2013, the North East Licensing Team Leader spoke to Mr Sheard on the telephone.  Mr Sheard confirmed that he had applied for a duplicate CPC and that he would complete the TM1 form and resend the TM1 questionnaire.  He stated that it would take up to 28 days for a duplicate certificate to be obtained and as a result the Team Leader extended the date for the Appellant responding to the letter of 26 March 2013 to 10 May 2013. 

(xi)           On 11 April 2013, a completed TM1 form and TM questionnaire were received by the OTC.  However, no duplicate CPC was received or other communication from the Appellant or Mr Sheard.  On 3 June 2013, the Appellant’s licence was revoked.

 

3.           At the hearing of this appeal, the Appellant did not attend and did not request that we determine the appeal in its absence.  However, we were satisfied that we were able to do so upon the papers before us and now give our determination. 

 

4.           On 11 June 2013 when notifying the Tribunal of the Appellant’s intention to appeal, Mr Sheard stated:

“there has been absolutely no change in any circumstances regarding my licence.  The only problem seems to be that for some reason they have lost my records and details of my CPC since I became an operator in August 1993. 

Since then I have had no reason to use my CPC .. unfortunately I have lost my certificate and at the moment am unable to obtain a duplicate.

I obviously had a CPC in the first place .. so I feel it is rather a draconian response to revoke my licence simply because I can’t fill a form in with the certificate number.  In the meantime, I will try to contact VOSA for a serial number and pay OCR another £37 for another search”. 

Mr Sheard enclosed with his letter an email from OCR dated 30 April 2013 informing him that despite an extensive search of their records for the period 1991 to 1993, no record could be found of Mr Sheard’s result.  It was recommended that Mr Sheard contact VOSA for a serial number which would assist in a search of OCR’s records.   Mr Sheard also enclosed a letter from the OTC dated 25 January 2012 which acknowledged receipt of a TM questionnaire but which requested a copy of Mr Sheard’s CPC certificate.  That letter gave him to 7 February 2012 to provide the certificate. 

5.           By an email dated 14 September 2013 (the day before the hearing of this appeal), Mr Sheard sent a scanned copy of his CPC which had been awarded in June 1988.  The certificate itself had been re-issued on 10 September 2013.

6.           Regulation (EC) 1071/2009 made significant changes to the regulatory framework that underpins operator’s licensing and as a result, every operator was required to provide the same information and documentation that was required from this Appellant.  Whilst we acknowledge that on the face of it, the requirements appeared to pose an unnecessary burden upon operators’ whose circumstances had not changed since the grant or variation of a licence, nevertheless the information had to be provided. 

7.           We have set out the content of the correspondence sent by the OTC to the Appellant in some detail because it demonstrates the flexible approach that was taken by the OTC to the Appellant and Mr Sheard.  It was clear that an original CPC was required by the OTC as early as November 2011 and yet the Appellant did nothing about seeking a replacement for Mr Sheard’s CPC until April 2013, then, giving the wrong range of dates for a search to be undertaken by the OCR.  The certificate now before the Tribunal is dated 10 September 2013, some 22 months after the original was required by the OTC.  It was incumbent upon the Appellant to ensure that the copy CPC was provided to the OTC prior to the last deadline set (which was 10 May 2013) or at the very least to contact the OTC again to advise that there had been a delay in obtaining a copy because of difficulties that Mr Sheard had in recollecting when the original had been issued to him.  Silence at that stage simply was not an option open to the Appellant (if silence is ever an option to operators when dealing with the OTC).  We are satisfied that the revocation of the Appellant’s licence was inevitable when the OTC did not hear from the Appellant further after 10 May 2013.  The Tribunal is not prepared to allow this appeal upon the basis of the evidence now provided to us in the form of the copy CPC.  This could and should have been made available to the OTC long before 10 May 2013; it does not constitute fresh evidence.  The Appellant must now re-apply for its licence, along with an interim licence. 

8.           The appeal is dismissed. 

 

 

 

Her Honour Judge J Beech

25 September 2013