Neutral Citation Number: [2015] UKUT 157 (AAC) Appeal No.  T/2014/86

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Fiona Harrington, Deputy Traffic Commissioner for the

West of England Traffic Area dated 26 November 2014

 

 

 

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

 

Appellants:

 

 

COLE CRISPIN LIMITED

 

 

Attendances:

For the Appellant: The Appellant notified the Tribunal that he would not be attending and requested that his appeal be determined in his absence.

 

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

Date of hearing: 24 March 2015

Date of decision:   30 March 2015

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

 

IT IS HEREBY ORDERED that the appeal be DISMISSED

 

 

SUBJECT MATTER:-  Refusal of application for restricted operator’s licence as a result of a failure to advertise the new application within the statutory time limits and failure to submit original bank statements.

 

 

CASES REFERRED TO:-  Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

 

 

REASONS FOR DECISION

 

 

1.             This is an appeal from the decision of the Deputy Traffic Commissioner for the West of England Traffic Area (“DTC”) made on 26 November 2014 when she refused the Appellant’s application for a restricted operator’s licence under sections 11 and 13D of the Goods Vehicles (Licensing of Operators) Act 1995 (“the 1995 Act”). 

 

2.             On 21 July 2014, the Office of the Traffic Commissioner (“OTC”) received an application from the Appellant for a restricted licence authorising one vehicle.  The application which was dated 6 July 2014 had attached to it:

 

a)    a model maintenance agreement which was incomplete in that it did not state when the contract was due to take effect;

b)    copy bank statements in the name of Mr C Cole;

c)    a copy of an advertisement which had been placed in the Western Daily Press advertising the application dated 26 June 2014, which was four days out of time (it not having been published within 21 days of the application having been made in accordance with s.11(2) of the 1995 Act).

 

3.             By a letter dated 12 August 2014, Bahadur Singh, a temporary case worker within the OTC, wrote to the Appellant requesting the following documentation by 26 August 2014:

 

a)    original bank statements in the name of Cole Crispin Limited; a guidance note was provided making it clear that the bank statements must be in an original form;

b)    a completed maintenance agreement;

c)    evidence of a new advertisement published no later than 2 September 2014 (the last day of the twenty one day period following the application as prescribed by s.11(2) of the 1995 Act). 

 

The letter made it clear that the Traffic Commissioner had no discretion in relation to the timing of the publication of advertisements.

 

4.             On 28 August 2014 Mr Singh telephoned Mr Cole who was the director of the Appellant company to inform him that the deadline of 26 August 2014 had been missed.  Mr Cole explained that he had been on holiday and that he would provide the requested documentation, including evidence of a further advertisement published on or before 2 September 2014.  This conversation was not followed up by a further letter by Mr Singh.

 

5.             On 19 September 2014, Mr Singh wrote to the Appellant company advising that no further documentary evidence had been received by the OTC and that all outstanding documents must be provided no later than 3 October 2014, including evidence of an advertisement published no later than 2 September 2014.

 

6.             On a date which is not apparent from the appeal bundle, but would appear to have been on or after 25 September 2014, the Appellant company submitted:

 

a)    a second advertisement published on 17 September 2014 (fifteen days outside the period prescribed by s.11(2) of the 1995 Act);

b)    a completed maintenance agreement;

c)    copy bank statements in the name of the Appellant company demonstrating the necessary financial standing.

 

7.             Mr Singh then left the OTC.  It is unknown when another case worker took over responsibility for the Appellant’s application but on 24 October 2014, Muhammad Omer Tahir referred the application to the DTC with a recommendation that it be refused as a result of the Appellant’s failure to:

 

a)    provide original bank statements resulting in a failure to comply with the requirements of s.13D of the 1995 Act; and

b)    to provide an advertisement which complied with the requirements of s.11 of the 1995 Act. 

 

The DTC refused the application on 22 November 2014 adopting the recommendation made.  That refusal was contained in a letter dated 26 November 2014 sent by Mr Tahir. 

 

8.             Mr Cole emailed the email address of Mr Singh on 25 November 2014 (a copy of which is not within the appeal bundle).  He emailed again on 1 December 2014 complaining about the application process which he described as a “farce”.  He repeated the chronology and highlighted that he had spent nearly £1,000 on an application only to be told that the file was closed.  Both of these emails were only brought to the attention of Simon Griffiths, Senior Team Leader within the OTC on 9 January 2015.  He then considered the chronology and accepted that the “application process was not as smooth as would normally be expected and lessons can be learnt in terms of communication.  The process was not assisted by the departure of the temporary caseworker midway through the application and this has elongated the process”.  He noted, having spoken to Mr Cole, that Mr Cole disputed the contents of the note of the telephone conversation which took place on 28 August 2014.  Mr Cole denied that Mr Singh emphasised the need to comply with the deadline of 2 September 2014 for re-advertising the application.  By an email dated 19 January 25, Mr Griffiths responded to Mr Cole’s complaints and offered to be Mr Cole’s personal point of contact in respect of any future application he may wish to make.

 

9.             The Appellant’s reasons for appealing as set out by Mr Cole are that he had provided all of the paperwork which must have been lost by the OTC.  He had re-advertised at great cost, having provided the first advertisement which was late by two days and which must then have sat on “the Commissioner’s desk doing nothing”.  He had sent the documents requested on 12 August 2014 by recorded delivery (he does not say when he did so).  To add insult to injury, he was then told that it was an offence to drive a vehicle without an operator’s licence.  It was no surprise that people did drive without operator’s licences rather than have to deal with the OTC whose officers “simply can’t be bothered to do their job”.  He was a hard working person who had done everything asked of him.

 

10.         We sympathise with Mr Cole’s sense of frustration but the statutory requirements relating to advertisements are clear and the DTC had no discretion to waive those requirements even though no objections had been received by the OTC as a result of those advertisements.  By s.11(2) of the 1995 Act the relevant advertisement must be published within 21days either side of the date of the application.  Whilst the date on the application was 6 July 2014, it was not received by the OTC until 21 July 2014 (and Mr Cole does not contend otherwise). The approach of the OTC to deem the date of receipt of an application as the date the application was made is a reasonable one.  There can be no doubt that by that stage, the first advertisement was out of time.  Whatever the final position might be in relation to the telephone conversation Mr Cole had with Mr Singh on 28 August 2014, the letter of 12 August 2014 made it clear that a second advertisement was required to be published no later than 2 September 2014.  In the absence of an advertisement published in compliance with s.11(2) of the 1995 Act, the Appellant’s application was bound to fail and he was required to submit a fresh application with an advertisement that was compliant with s.11(2) of the 1995 Act.

 

11.         Further, the Appellant had failed to provide original copies of the bank statements in the Appellant’s name.  However, this would not have been fatal to the application as further time could have been given to Mr Cole to provide the original statements (having previously provided copies).

 

12.         We are satisfied that the DTC had no option but to refuse the Appellant’s application for a licence under s.11 of the 1995 Act. We cannot find that either the law or the facts of this case impel us to come to a different view to that of the TC as per the test in Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  We urge Mr Cole to take up the offer made by Mr Griffiths to personally assist him in successfully applying for a restricted licence.

 

13.         The appeal is dismissed.

 

 

 

 

Her Honour Judge J Beech

30 March 2015