Neutral Citation Number: [2013] UKUT 559 (AAC) Appeal No.  T/2013/49

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of

Nick Denton, Traffic Commissioner for the

London and South East of England Traffic Area dated 3 July 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:

STUART MARK VINCENT

trading as CALL A CAB

Attendances:

For the Appellant: In person 

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

Date of hearing: 22 October 2013

Date of decision:  7 November 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED and the matter be remitted for hearing

SUBJECT MATTER:-  Refusal of application for a restricted PSV licence; evidence that the Appellant had requested a public inquiry prior to refusal.

CASES REFERRED TO:-  None

REASONS FOR DECISION

1.           This was an appeal from the decision of the Traffic Commissioner for the London and South East of England Traffic Area made on 3 July 2013 when he refused the Appellant’s application for a restricted PSV licence under ss.13(3)(b) and 14 ZC(1)(b) of the Public Passenger Vehicles Act 1981  (“the Act”).

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

(i)              On the 25 February 2013, the Office of the Traffic Commissioner (“OTC”) received an application from the Appellant for a restricted PSV operator’s licence authorising a 16 seat transit vehicle.  Question 8(a) of the application requests details of whether the operation of the vehicle would constitute the Appellant’s business or main occupation and if not, the number of hours worked in his main occupation and the anticipated number of hours to be worked under the licence.  The Appellant’s answer was “20/25 hours per week”.  He enclosed with the application a maintenance contract and bank statements.

(ii)             By a letter dated 5 March 2013, Nicola Field a Case Worker of the OTC requested the following further information:

a)    An undertaking that the Appellant would attend a new operator’s seminar within six months of the grant of the licence;

b)    Confirmation of his main occupation, the hours worked, the hours to be worked as a PSV driver, the nature of the work to be undertaken under the licence;

c)     An amended maintenance contract to show the maximum PMI intervals of ten weeks.

(iii)            In a letter dated 7 March 2013 (received on 11 March), the Appellant confirmed that he would attend a new operator seminar; he gave his main occupation as “taxi driver and run my own vehicle”; he confirmed that his main work was private hire being “available for about 50 hours a week but driving for about 20 to 25 hours per week”.  He would use the PSV licence within his working week for bookings of over 8 passengers for airport runs, school work and private functions.  The use of the vehicle would save the booking of two vehicles for groups over eight.  The Appellant enclosed an amended maintenance contract. 

(iv)           On 19 March 2013,  Ms Field  responded.  The letter was described as a final attempt to resolve the outstanding issues and warned that if the required information was not received by 2 April 2013, then the Appellant’s application would be refused.  The Appellant was requested to state the number of hours that he anticipated he would work under the PSV licence  a rough estimate of hours being sufficient).  In a prompt response, the Appellant stated “I anticipate working on the PSV about 10/15 hours”.

(v)             At some stage (the date is unclear from the appeal bundle), Ms Field contacted the Appellant requesting proof of his income.  He informed Ms Field that he was self employed and did not have any accounts.  He could not at that stage, find his self assessment tax forms.  He indicated that he would have a look for anything that would assist.  On 26 April 2013, the Appellant contacted Ms Field to inform her that the “tax office” had agreed to provide him with copies of his tax assessments and that he would forward them to her. 

(vi)           In the interim, Ms Field had prepared a written submission for the Traffic Commissioner.  Whilst the Appellant had provided evidence of sufficient financial resources, he had not provided proof of earnings.  As a result, the application was incomplete.  Ms Field indicated that she was inclined to recommend that the Appellant be given a further fourteen days to provide proof of earnings before his application was refused with an offer of a public inquiry.  The Traffic Commissioner agreed with Ms Field’s proposals stating: “if we have no idea of how much he earns as a taxi driver, we will not be able to tell whether PSV driving is his main occupation ...”

(vii)          On 29 April 2013  the OTC received the Appellant’s self assessment tax calculations for year ends 5 April 2011 and 5 April 2012.  He also enclosed thirteen BACS remittance advice documents from Kent County Council in respect of a school contract which the Appellant had with the Council.  These documents must have crossed in the post with a further letter from Ms Field dated 30 April 2013 advising the Appellant that he had fourteen days to submit satisfactory evidence of proof of his main occupation. 

(viii)         On 8 May 2013, Ms Field made a further submission to the Traffic Commissioner.  She included the detail of the Appellant’s tax calculations (but made no reference to the existence of the Appellant’s contract with Kent County Council or the amounts the Appellant received on a monthly basis).  She informed the Traffic Commissioner that she was inclined to recommended that the application be refused with the offer of a public inquiry under s.14 ZC (1)(b) and s.13(3)(b) of the Act.  Michala Reith, Team Leader agreed with Ms Field’s recommendation.  On 24 May 2013, the Traffic Commissioner agreed with the recommendation stating “If he drives the PCV for 500 hours a year (a conservative estimate, as the temptation once he has it will be to get as much use out of it as possible), he can only charge £20 per hour (unrealistically low for a PCV) before it starts becoming his main source of income”.

(ix)           On 28 May 2013, Ms Field wrote to the Appellant advising him that the Traffic Commissioner was considering refusing his application and advised him of his right to request a public inquiry within fourteen days and that failure to request such a hearing would result in his application being refused. Then on 3 July 2013, Ms Field wrote to the Appellant  stating that the deadline for requesting a public inquiry had passed and that the Appellant’s application had been refused.

(x)             The next record held in the Appellant’s file is a note of a telephone call from the Appellant to Ms Field.  He informed her that he had sent in a letter requesting a public inquiry and had followed his request up with a telephone call.  He had spoken to a man he could not name and had been told that his request had been received.  The Appellant claimed that the OTC had mislaid his letter requesting a hearing. Ms Field noted that the Appellant was unhappy with the outcome of his application and she advised him to send in a copy of the letter he had sent requesting a hearing.  Accordingly, the Appellant sent a copy of a letter dated 4 June 2013 which contained a request for a public inquiry “to resolve the matter”.  That was received by the OTC on 8 July 2013.

(xi)           On 24 July 2013, Ms Field sent a memo to Anne Bush setting out the recent history of the Appellant’s application and enquiring whether the PI team would accept the Appellant’s request for a hearing.  Ms Bush replied:

“I would say that Mr Vincent needs to appeal to the Upper Tribunal.  I’m assuming the letter received on 8 July is a copy of the reply sent and which was not received.  Therefore the refusal actioned on 3 July was done on the basis of no PI request being received and in accordance with the TC decision.

I would recommend that you refer him to the Upper Tribunal and they can advise on the next stage”.

Ms Field then wrote to the Appellant: “I have been advised to refer you to the Upper Tribunal whereby they will advise on the next stage”.

3.           At the hearing of this appeal, the Appellant attended in person.  He expressed concern and dismay that his application had been refused and that an appeal to the Tribunal had been necessary.  He had sent a letter requesting a public inquiry and had even telephoned when two or three weeks had passed and he had not heard anything from the OTC.  He had seen adverts in his local newspaper placed by operators advertising applications for operator’s licences and he was concerned that this was something he may be required to do.  However, when he called the OTC, he had been assured by someone that everything was in hand and that he would hear from the OTC in due course.  Then he received the letter of 3 July 2013 refusing his application.  The Appellant was at a loss as to why his application had been refused without a public inquiry taking place.  He had responded to all requests made of him.

4.           The Appellant impressed the Tribunal as an honest and straightforward individual.  The Tribunal was unanimous in its view that it was obvious that the Appellant had indeed responded promptly to all requests made of him and that it was clear that he did not understand the issue which the OTC and the Traffic Commissioner needed to resolve, that being the use to which the operator’s licence was to be put by the Appellant and whether PSV driving was to become the Appellant’s main occupation.  The Tribunal is in no doubt that the Appellant was keen to resolve the outstanding issues so that he could be granted a restricted licence and it follows that we are in no doubt that the Appellant did write to the OTC and request a public inquiry.  Whether that letter did not arrive or was lost in the system or had been misfiled may never be known but even the briefest perusal of the Appellant’s file creates an overwhelming impression of someone who was keen to assist in the application process and as a result should have been given the benefit of the doubt in relation to whether he had made a request in writing for a public inquiry and whether that request had been sent in good time to arrive within the deadline of Ms Field’s letter of 28 May 2013.  It follows that the Tribunal allows this appeal and advises that the “next stage” is for a public inquiry to take place.  If necessary, the Appellant should be given an opportunity of speaking to someone who could explain to him what information he needs to provide to the Traffic Commissioner so that the outstanding issues may be resolved. 

5.           Accordingly, the appeal is allowed.

Her Honour Judge J Beech

7 November 2013