Neutral Citation Number: [2014] UKUT 380 (AAC)

Appeal No.  T/2014/44

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Kevin Rooney Traffic Commissioner for the

North East of England

Dated 27 April 2014

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Rawsthorn, Member of the Upper Tribunal

Appellant:

STEPHEN JAMES BEATTIE t/a SOWERBY MINIBUS TRAVEL

Attendances:

For the Appellant: The Appellant did not appear and was not represented.

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

Date of hearing: 23 July 2014

Date of decision: 26 August 2014

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

SUBJECT MATTER:- Repute: failure to fulfil statement of fact

CASES REFERRED TO:-  None

REASONS FOR DECISION

1.        This is an appeal from the decision of the Traffic Commissioner for the North East of England to revoke the restricted public service vehicle operator’s licence held by the Appellant on the grounds that (i) a statement of fact made when applying for the licence had not been fulfilled and (ii) the Appellant was no longer of good repute.

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

            (i)           The Appellant is the holder of a restricted PSV operator’s licence authorising one vehicle, with an operating centre at 9 Sowerby Croft, Norland, Sowerby Bridge, HX6 3QS.

           (ii)           The licence was granted on 16 January 2012.  One of the undertakings given by the Appellant when the licence was granted was that the Appellant would attend a PSV Restricted Seminar within 12 months of the licence being granted.

          (iii)           In an undated letter to the Tribunal the Appellant said that he telephoned the Traffic Commissioner soon after the licence was granted to ask how he could get on a PSV Restricted Seminar.  He said that he was told that he would be notified in due course.

         (iv)           The Appellant was given a date by VOSA, (now DVSA), on which to attend a PSV Restricted Seminar but he failed to attend.

          (v)           In November 2013 a second letter was sent to the Appellant giving him another date for attendance at a PSV Restricted Seminar but once again he failed to attend.  Following his second failure to attend messages were left for him on his telephone asking him to contact VOSA but he failed to do so.

         (vi)           On 24 March 2014 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant, by First Class post and Recorded Delivery, to all known addresses including 9 Sowerby Croft.  The letter stated that the Traffic Commissioner had been informed that the Appellant had failed to attend a new operators seminar and that no response had been received to letters sent regarding that matter.  The letter indicated that the Traffic Commissioner was considering making a direction under s. 17(2) of the Public Passenger Vehicles Act 1981, (“the 1981 Act”) to revoke the licence on the grounds set out in paragraph 1 above.  The letter went on to offer the Appellant the opportunity to make representations in writing before 14 April 2014 and/or make a request for a Public Inquiry by the same date.  The letter warned that if no request for a Public Inquiry was made by 14 April 2014 the licence would be revoked.

        (vii)           On 28 March 2014 the Appellant says that he replied.  In his reply he said that he explained that towards the end of 2013 he was in hospital and was therefore unable to attend the Seminar referred to in paragraph 2(v) above.  He said that he requested his wife to write to the OTC to explain that he was unable to attend.  He went on to state that as far as he was aware the only invitation to a Seminar was the one received in the latter part of 2013.  He expressed a willingness to attend the next Seminar whenever that might be.

       (viii)           In view of the fact that the Appellant requested that the Tribunal hear and determine the appeal in his absence the Tribunal sent a number of question to the parties in advance of the hearing.  In answer to one of these questions the OTC expressly stated that no correspondence had been received by them from the Appellant in the period since the grant of the licence.  In other words it would appear that the Appellant’s letter of 28 March 2014 was not received nor was the letter explaining that he was unable to attend the Seminar.

         (ix)           On 27 April 2014 the OTC wrote to the Appellant to inform him that the licence had been revoked on the grounds (i) that a statement of fact had not been fulfilled and (ii) that he was no longer of good repute.

          (x)           On 28 May 2014 the Appellant filed a Notice of Appeal.  In his grounds of appeal he set out the matters summarised at paragraph 2(vii) above.  He went on to suggest that the problem appeared to be getting letters to the relevant member of the OTC.  He went on to state that he was not sure what he was appealing against because he felt that he had complied with all that he had been asked to do.

         (xi)           On 25 May 2014 the Appellant wrote to the Tribunal.  He repeated the matters set out above.

3.        We have to consider whether, on the material before him, the Traffic Commissioner was plainly wrong to revoke this licence, in the sense that reason and the law impelled him to take a different view.  The evidence before the Traffic Commissioner was that the Appellant had been sent two invitations to PSV Restricted Seminars and that he had failed to attend either of them.  In addition the evidence indicated that he had failed to respond to telephone messages inviting him to phone back following his failure to attend.  As far as the Traffic Commissioner was concerned there was a further factor namely that he was not aware of any reply to the OTC’s letter of 24 March 2014.

4.        The Appellant’s case is that he only received one invitation to a seminar, namely the one issued towards the end of 2013, that he was unable to attend on that occasion because he was in hospital and that he did respond to the invitation and to the letter of 24 March 2014.

5.        Given that the condition was that the Appellant should attend a Seminar within 12 months of the grant of the licence in January 2012 we consider that it is unlikely that the first invitation to attend a seminar would have been delayed until the end of 2013, i.e. well after the 12 month time limit had elapsed.  In our view the probability is that the Appellant was sent an earlier invitation.  If the Appellant is right then not only did this invitation not arrive but, in addition, two letters sent to the OTC failed to arrive.  We accept that letters do go astray from time to time but it seems to us that it is unlikely that so many letters, sent by different people would have gone astray in a relatively short period of time.  When we take into account the evidence that unsuccessful attempts were made to contact the Appellant by phone and that he failed to respond to messages left on his phone requesting him to ring back it seems to us that the most probable explanation is that the Appellant is simply not very good at administration in general and communication in particular.  Even if we assume that the contents of his letter of 28 March 2014 are correct and that he did provide an explanation for his failure to attend the Seminar at the end of 2013 it seems to us that the Traffic Commissioner would have reached the same conclusion.

6.        For these reasons we are not persuaded that the decision of the Traffic Commissioner was plainly wrong.  The appeal is dismissed with immediate effect.

7.        If the Appellant wishes to continue to operate under a Restricted PSV operator’s licence he must apply for a new licence.  When doing so he should be prepared to satisfy the Traffic Commissioner (i) that he can provide an address at which he can rely on correspondence being received, (ii) that he will respond promptly to letters or invitations from the OTC and/or DVSA and (iii) that he will ensure that letters sent to the OTC and/or DVSA are dated and fully and correctly addressed.  If he uses email it may be sensible, in view of his assertion that two letters to the OTC went missing, to alert the OTC/DVSA to expect a letter sent via the post in order that he can be alerted if it is not safely received.

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

26 August 2014