Neutral Citation Number: [2013] UKUT 536 (AAC)

Appeal No.  T/2013/48

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Simon Evans DEPUTY TRAFFIC COMMISSIONER for North West of England.

Dated 12 June 2013

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Andrew Guest, Member of the Upper Tribunal

 

 

Appellant:

JANE TOWNSEND

 

 

 

Attendances:

For the Appellant: The Appellant was not present nor was she represented

 

 

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

Date of hearing: 8 October 2013

Date of decision: 28 October 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

SUBJECT MATTER:-   Financial standing

 

 

CASES REFERRED TO:- None

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Deputy Traffic Commissioner for North West of England to revoke the standard national goods vehicle 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 standard national goods vehicle operator’s licence authorising two vehicles.  The licence commenced on 14 June 2002.

(ii)                 On 23 April 2012 the Appellant was sent a checklist containing details of her licence, a request for current financial information and details of the fee that had to be paid if the licence was to remain in force.

(iii)                On 15 May 2012 the Appellant replied to this letter.  The financial information she provided fell short of the amount required to operate two vehicles.

(iv)                On 21 May 2012 the Office of the Traffic Commissioner, (“OTC”), replied to the Appellant’s letter and requested original or certified bank statements in order to “fully assess” the financial standing of the Appellant.  Other methods of meeting the requirement were also suggested and a reply was required by 4 June 2012.

(v)                 On 31 May 2012 the OTC received a reply from the Appellant.  She enclosed two pages of bank statements, evidence that an overdraft had been agreed in September 2010 and she referred to the fact that she had an unused amount on a credit card.

(vi)                On 18 June 2012 the OTC wrote to the Appellant.  They explained that the financial evidence which she had provided was not sufficient for a variety of reasons.  First, the bank statements were not originals nor were they certified.  Second, they covered short periods at the start of February and March 2012, not a continuous period of 28 days and third the account holder was not named nor was there any evidence to show that the account was held by the Appellant.  The letter went on to ask for original evidence that the overdraft was still in place.  A reply was required by 2 July 2012.

(vii)              On 9 July 2012 the OTC received a reply from the Appellant.  She apologised for the delay and explained that she had been in and out of hospital.  She said that she was enclosing everything needed to show appropriate financial standing.  A number of the enclosed documents were in the name of S & J Townsend and some were in the name of Shaun Townsend.  There were statements for three different bank accounts, one in the sole name of the Appellant another in the name of J & S Townsend while the third account was anonymous.

(viii)             On 28 August 2012 the OTC wrote to the Appellant stating that the letter should be regarded as: “a final attempt to resolve this issue”.  The letter continued: “The further financial evidence submitted is not sufficient.  They are not certified, do not cover a full 28 days, do not show the account holders name and do not show the account number.  Please do not black out the account details on the statements”.  The letter went on to repeat the explanation of what was required, which had been set out in earlier letters and it required a response by 4 September 2012.

(ix)                On 7 September 2012 the OTC received 10 pages of bank statements relating to joint accounts held by Mrs J and Mr S Townsend.  The statements for one account covered the period between 28 January 2012 and 27 April 2012 while the statements for the other account covered the period 7 June 2012 to 4 September 2012.  Quite apart from the fact that the accounts were in joint names the average balances on the individual accounts fell well short of the amount required.  In addition because the dates did not overlap it was impossible to assess the result of combining the credit balances on the two accounts.

(x)                 On 12 December 2012 the OTC wrote to the Appellant.  She was told that the Traffic Commissioner had been informed that the financial evidence, which had been submitted, was unacceptable and that he had requested confirmation that she remained a sole trader.  The Appellant was warned that the Traffic Commissioner was considering taking action to revoke the licence on a number of grounds, which were set out in the letter.  The Appellant was informed of her right to make representations and to request a Public Inquiry.

(xi)                On 20 December 2012 the Appellant replied to the OTC.  She confirmed that she was a sole trader and she asked to be told whether there was any further information that was needed to prevent the revocation of her licence.

(xii)               On 15 January 2013 the OTC replied reminding the Appellant that financial evidence was still required.  She was given until 29 January 2013 to provide financial information covering the last 3 months.  She was reminded of her right to request a Public Inquiry.

(xiii)             On 31 January 2013 the OTC received a reply from the Appellant, which enclosed a number of pages from two different bank accounts.  Quite apart from any other problems in relation to these accounts the average credit balance was insufficient to meet the requirement for two vehicles.

(xiv)             On 5 February 2013 the OTC wrote to the Appellant to clarify whether or not she was requesting a Public Inquiry.  On 15 February 2013 the Appellant replied that she was.

(xv)              On 11 March 2013 the Appellant was called to a Public Inquiry and was warned that the Traffic Commissioner was considering whether to take disciplinary action against her operator’s licence.  Amongst the grounds for action set out in the letter was that the Appellant was no longer of appropriate financial standing.  The letter explained that the Appellant had to demonstrate that £11,200 was readily available in order to meet the requirement to be of appropriate financial standing.  It went on to set out the kind of evidence that the Traffic Commissioner would require.  In particular it stressed the need for original documents in the name of the holder of the licence.  The Public Inquiry was due to be held on 18 April 2013.

(xvi)             On 18 April 2013 Solicitors acting for the Appellant emailed the OTC to request an adjournment.  They attached a letter from the Appellant explaining the sudden family emergency, which meant that she was unable to attend.

(xvii)            On 23 April 2013 the OTC wrote to the Appellant to inform her that an adjournment had been granted and that the Public Inquiry would take place on 7 June 2013.

(xviii)          On 7 June 2013 the Appellant was not present when the Public Inquiry was due to start.  Attempts to telephone the Appellant on the contact numbers available to the OTC were unsuccessful.  No further correspondence had been received from the Appellant.  The Solicitors who had acted for the Appellant when she requested an adjournment were never fully instructed and they too had been unable to contact the Appellant by telephone.

(xix)             The Deputy Traffic Commissioner concluded that the Appellant must have received the original call-up letter, because she had applied for an adjournment.  He pointed out that the letter adjourning the Public Inquiry to 7 June 2013 had been sent to the same address and that it had given the Appellant nearly 6 weeks notice of the new date.  In paragraph 7 of his written decision the Deputy Traffic Commissioner took into consideration a number of relevant factors.  Having assessed them he came to the conclusion that the Appellant had voluntarily absented herself from the hearing.  He considered the possibility that a further adjournment might enable the Appellant to attend but rejected it.  He took into account the fact that there had been concerns about the Appellant’s financial position over the previous 12 months and that those concerns had never been allayed.  He came to the conclusion that it was no longer sensible to allow that situation to continue and decided that the correct course was to proceed with the Public Inquiry.

(xx)               The Deputy Traffic Commissioner set out the chronology which has been summarised above.  He went on to find that at no time during the previous 12 months had the Appellant provided evidence of the kind envisaged in the guidance issued to her, nor had she demonstrated the availability of sufficient money.

(xxi)             The Deputy Traffic Commissioner decided that on the limited evidence available he was not satisfied that there had been a change of entity.  He therefore proceeded on the basis that the Appellant remained a sole trader.

(xxii)            The Deputy Traffic Commissioner correctly directed himself as to the requirement to be of appropriate financial standing and as to the consequences if an operator ceases to be of appropriate financial standing.  He also reminded himself that he had discretion to allow a period of grace, not exceeding 6 months, at the end of which the operator is expected to demonstrate that the requirement to be of appropriate financial standing will be met on a permanent basis.  The Deputy Traffic Commissioner went on to point out that there had been no application for a period of grace and he concluded, given the length of time since the Appellant was first asked to demonstrate appropriate financial standing that it would not be appropriate to grant a period of grace in this particular case.

(xxiii)           The Deputy Traffic Commissioner was satisfied that the Appellant was no longer of appropriate financial standing.  He therefore revoked the Appellant’s operator’s licence, as he was obliged to do having regard to the mandatory terms of s. 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995, (“the 1995 Act”).  He determined that the revocation should take effect on 26 June 2013.

(xxiv)          On 4 July 2013 the Appellant appealed against that decision.  She said that she just wanted a bit of time to prove financial standing and that she had recently reduced from 2 wagons to 1 wagon and that she always had enough financial standing for one wagon.

3.           The appeal was listed for hearing on 8 October 2013 at 10.30 a.m.  When it was reached at 11.55 a.m. the Appellant was not present nor was she represented.  The Tribunal had not received any explanation for the Appellant’s absence nor had she requested an adjournment.  In those circumstances the Tribunal decided to determine the appeal in the absence of the Appellant and on the basis of a full review of the material contained in the appeal file.

4.           We are satisfied that the Deputy Traffic Commissioner’s decision to proceed with the Public Inquiry in the absence of the Appellant was correct.  He took that decision having carefully weighed up a number of relevant considerations.  In particular he correctly took into account that the Appellant had been given clear guidance as to the material required to satisfy the requirement to be of appropriate financial standing and had had numerous opportunities to provide it.

5.           In her grounds of appeal the Appellant has asked for yet more time in which to provide evidence of financial standing.  In our view it would not be appropriate to grant that request.  She was first asked for up to date evidence to satisfy the requirement for financial standing in April 2012, in other words nearly 18 months ago.  Financial standing is not a ‘one off’ requirement to be met when applying for an operator’s licence and then from time to time, for example when a continuation fee becomes payable.  Instead it is a continuing requirement, which must be met throughout the period during which the licence is in force, though this can be done by showing that the average balance available to the operator meets or exceeds the amount required.  In our view the Appellant was given clear guidance as to what was required on more than one occasion.  She was given clear explanations as to why the information provided was not sufficient and she was given ample opportunity to demonstrate that she is of appropriate financial standing.  Over a period of more than 12 months leading up to the Public Inquiry she failed to heed the guidance or take account of the explanations and she failed to provide the information, which had been requested.  In effect she operated without being of appropriate financial standing for a period of over a year.  In our view it would not be appropriate to permit that situation to continue while the Appellant makes yet another attempt to provide adequate and acceptable evidence.

6.           The second point made by the Appellant is that she has now reduced her fleet from two vehicles to one and that she has always had sufficient money to run one vehicle.  She says in her grounds of appeal that the reduction was ‘recent’ though it is not clear whether this occurred before or after the date of the Deputy Traffic Commissioner’s decision.  If it occurred before the date of the decision the Appellant requires permission to adduce fresh evidence.  One of the conditions which has to be met if fresh evidence is to be adduced is that it is evidence “which could not have been obtained, with reasonable diligence, for use at the public inquiry”.  We find it difficult to see how that condition could be met in the present case, which means that an application to adduce fresh evidence would be refused.  If the reduction occurred after the date of the Deputy Traffic Commissioner’s decision, which seems rather more likely, it is not something that Parliament permits us to take into account.  The reason is that paragraph 17(3) of Schedule 4 to the Transport Act 1985 provides that: “The tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  The correct course would have been for the Appellant to apply to the Traffic Commissioner for a reduction of her fleet from 2 vehicles to 1 vehicle.  Once granted the result would have been an automatic reduction in the amount required to satisfy the requirement to be of appropriate financial standing.

7.           In our judgment the Deputy Traffic Commissioner was plainly right to conclude that the Appellant was no longer of appropriate financial standing.  Having come to that conclusion he had no option but to revoke the licence because the moment it appeared to him that the Appellant was no longer of appropriate financial standing the mandatory terms of s.17(1)(a) of the 1995 Act made revocation inevitable.

8.           For these reasons the appeal is dismissed and the order revoking the licence stands.  If the Appellant wishes to operate goods vehicles in excess of 3.5 tonnes she must apply for and obtain a fresh good vehicle operator’s licence.

 

 

 

 

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

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

28 October 2013