Neutral Citation Number: [2015] UKUT 456 (AAC) Appeal No.  T/2015/29

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of

Nicholas Denton, Traffic Commissioner

for London & the South East of England dated 7 May 2015

Before:

Her Honour Judge J Beech, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

Stuart James, Member of the Upper Tribunal

Appellant:

Daniel Stephen Price trading as Danny Price Haulage

Attendances:

For the Appellant:

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

Date of hearing: 4 August 2015

Date of decision:   6 August 2015

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED with immediate effect

SUBJECT MATTER:-  Financial standing as an un-discharged bankrupt.

CASES REFERRED TO:-  None

REASONS FOR DECISION

1.            This is an appeal from the decision of the Traffic Commissioner for London & the South East of England (“TC”) made on 5 May 2015 when he revoked the standard national operator’s licence of the Appellant (“Mr Price”) under ss. 26(1)(b),(f),(g),(h) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995. 

Background

2.            The factual background to the appeal appears from the documents, the transcript and the TC’s decision letter dated 7 May 2015 and is as follows.  Mr Price was granted an operator’s licence authorising one vehicle on 20 December 2005. He was the nominated Transport Manager and his sole source of work was F Conway Construction (“his employer”) and he took his instructions from his employer’s Transport Manager. 

3.            On 13 November 2013, the Office of the Traffic Commissioner (“OTC”) sent Mr Price a “propose to revoke” letter as a result of information the TC had received concerning Mr Price’s financial standing and in particular, that he had been declared bankrupt on 2 December 2013.  Further, the discharge of Mr Price’s bankruptcy was suspended indefinitely with effect from 1 October 2014 until the fulfilment of conditions specified in the suspension order.  Mr Price requested a public inquiry.

The Public Inquiry

4.            The public inquiry was listed for 20 February 2015.  Mr Price denied that he knew that he was required to inform the TC of his bankruptcy and admitted that he had “stuck his head in the sand”.  As for the order suspending discharge of Mr Price’s bankruptcy and the conditions to be fulfilled before it could be discharged, Mr Price was unable to state what they were but stated that a member of the Insolvency Service had commenced the process of valuing his truck and van which he had been allowed to retain until the outcome of the public inquiry.  When it was pointed out to Mr Price that the Insolvency Service would not have been aware of the possibility of a public inquiry, Mr Price stated that he was going to contact the OTC about his position but that the TC had “beaten him” to it.  He promised to ensure that any outstanding paperwork required by the Insolvency Service would be provided to them by the following Monday and he was warned that failure to provide the TC with further information would result in revocation of his operator’s licence.  Mr Price stated that he was good at his job and the vehicle was well maintained.  It had only failed its MOT once and that was the fault of maintenance provider.  He was looking into employing a Transport Manager and produced his PMI records.  The TC was critical of the maintenance provider’s failure to undertake regular brake checks and to record tyre depths and there were two instances of exceeding the six week PMI intervals.  He explained that having purchased the lorry from his employer nine years before and that as his employer was his sole source of work, he was “pushed around to different places”.  For the previous eight or nine months, he had been based at Walworth and had been parking his vehicle over night in the FM Conway yard. He had checked the position with his employer’s Transport Manager and he was advised that all was in order.  He was advised to make an application to add the yard as a specified operating centre.  Mr Price also produced his tachograph charts and accepted that he had not been using his mode switch.  He agreed that he had been “ a bit blasé” and agreed to attend a two-day Transport Manager CPC refresher course.  Advice was given about bank statements being in Mr Price’s sole name (rather than jointly with his partner).  At the conclusion of the hearing, the TC listed the steps he required Mr Price to take and indicated that provided all matters were in order, he would not take any action against Mr Price’s operator’s licence save for requiring an undertaking that Mr Price would attend the CPC refresher course.

5.            The TC’s directions made at the end of the public inquiry were set out in a letter dated 20 February 2015.  Mr Price was informed that he was to produce by 27 February 2015: a copy of the suspension order dated 1 October 2014; a letter from the Insolvency Service confirming the steps needed to be taken by Mr Price to discharge the bankruptcy order; bank statements showing the requisite financial standing (£7,000); a maintenance contract.  By 31 March 2015, Mr Price was to apply to add an additional operating centre to his licence and by 30 April 2015, he was to have attended the CPC refresher course.

6.            By an email dated 24 February 2015, Kat Jordan of the Insolvency Service informed the TC that Mr Price’s vehicle was vested in the bankruptcy estate but that Mr Price had requested that it be exempt as a vehicle necessary to him in his business.  The Official Receiver could not consider that request unless it was known whether Mr Price would retain his operator’s licence.  She attached the order of 1 October 2014 and another dated 29 October 2015 which confirmed that the discharge of Mr Price’s bankruptcy was suspended as a result of his conduct in failing to deliver up possession of assets and records and other information about the bankruptcy estate. 

7.            By a letter dated 30 March 2015, the OTC gave Mr Price fourteen days to explain why he had not complied with his obligations under the bankruptcy order.  He was also asked to provide up to date evidence of financial standing.  No response was received from Mr Price and as a result, a further call up letter was sent to him, notifying him of a public inquiry hearing to take place on 5 May 2015.

8.            Mr Price wrote to the OTC on about 14 April 2015, apologising for his failure to provide the information requested in the OTC’s letter of 20 February 2015.  His partner had been in hospital and he was caring for their five children.  He had booked himself onto a CPC refresher course on 16 and 17 May 2015.  FM Conway had confirmed that he was required to work in the Westminster area for a “long time” and he was therefore proposing to apply to change his operating centre “over the next couple of weeks”.  He had found it hard to collate the necessary paperwork required under the bankruptcy proceedings as his bank could not find bank records relating to Mr Price’s bank accounts which he had been forced to close.  He hoped to have that information available in the following week.  He stated that his operator’s licence was “vital” to himself and his family.  He enclosed bank statements for three accounts each of which showed balances for the previous night which when taken together did not demonstrate financial standing; the statements also showed figures representing the “available balance” which when taken together would have demonstrated financial standing.  However, the statements also confirmed that there was no agreed overdraft limit on any of the accounts.  The figures required explanation.

9.            At the hearing of 5 May 2015, Mr Price failed to attend.  In the decision letter of 7 May 2015, the TC noted that when preparing for the reconvened hearing, he had learnt that on 12 March 2015, Mr Price had received an immediate prohibition for a dangerous, insecure load and that a fixed penalty notice had been issued.  In the absence of any further information from Mr Price about why he had failed to comply with his obligations under the Insolvency Act 1986 and a further explanation of his financial standing and in the certainty that Mr Price was an un-discharged bankrupt, the TC concluded that Mr Price could not satisfy the requirement of financial standing and that accordingly revocation of his licence was mandatory.  As Mr Price had failed to volunteer information concerning his bankruptcy, the TC further revoked Mr Price’s licence under s.26 of the Act (as set out in paragraph 1 above).  The order came into effect on 11 May 2015.

10.         In the interim, Mr Price contacted the OTC on 6 May 2015 advising that he had been unable to attend the public inquiry as his son had been unwell since the previous Friday and had been admitted to hospital.  Mr Price apologised for his non-attendance and averred that he thought that the hearing was listed for that day (6 May).  He was told to send an email but was advised that the TC had revoked his licence.

11.         In an email of the same date, Mr Price apologised for being confused about the date of the hearing which had been caused by his son’s illness and having to “juggle” his visits to hospital with his care of the other children in the family.  He was shocked by his mistake.  He hoped that he could be afforded a further opportunity to address the TC as his operator’s licence was important to his family.  The TC considered Mr Price’s email but considered that as a result of Mr Price failing to notify the OTC about his difficulties at any stage prior to the close of business on 5 May 2015 and having made the decision to revoke, he could not rescind his decision. 

The Appeal

12.         In his grounds of appeal to the Upper Tribunal, Mr Price repeated that he was unable to attend the public inquiry because of his son’s admission to hospital.  He believed that he had a case for keeping his operator’s licence and hoped to present it in the near future.  His operator’s licence was vital and he felt he could fulfil all obligations and become a very good operator.  The decision of the TC “may have been better” if Mr Price had attended.  He had everything in place to move forward in a positive way and believed he could turn his operator’s licence around if given the chance.  He also wished to continue working and earning a living for his partner and five children.

13.         Mr Price failed to attend the hearing of his appeal.  The Tribunal did not receive any communication from him either prior to the hearing or on the day advising of any difficulties preventing him from attending or that he would be late.  Neither did he request an adjournment.  In the circumstances, at 1.30pm, the Tribunal resolved to determine his appeal. 

The Upper Tribunal Decision

14.         Mr Price is an un-discharged bankrupt who has failed to give any adequate explanation for his failure to comply with his obligations under the Insolvency Act 1986.  Further, the financial information that he had provided to satisfy financial standing required considerable explanation which Mr Price was unable to provide as a result of his failure to attend the public inquiry.  The Tribunal sympathises with Mr Price’s position and we accept that it may have been the case, that as a result of his son’s illness, the date of the public inquiry either slipped his mind or caused him to be muddled about the dates.  However, Mr Price has failed to provide any evidence to show that his son was in hospital at the material time and has now failed to attend the appeal hearing.  As a result, we are left in the same position as the TC whose decision in relation to financial standing cannot be questioned.  In the circumstances, we are satisfied that that neither 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.  

15.      The appeal is dismissed.

Her Honour Judge J Beech

6 August 2015