Upper Tribunal (Administrative Appeals Chamber)

 

 

 

Appeal No. T/2015/20

 

IN  THE  UPPER  TRIBUNAL

ADMINISTRATIVE  APPEALS  CHAMBER

TRAFFIC  COMMISSIONER  APPEALS

 

ON  APPEAL  from  the  DECISION  of  J  A  ASTLE

DEPUTY  TRAFFIC  COMMISSIONER  for  Scotland

 

Dated: 24  February 2015

 

 

Before: A J Gamble Judge of the Upper Tribunal

G Inch Member of the Upper Tribunal

D Rawsthorn Member of the Upper Tribunal

 

 

Applicant: M C T  GROUP  TRAVEL  LIMITED

 

 

Attendances: None

 

 

Heard at: George House, 126 George Street, Edinburgh EH2 4HH

Date of Hearing: 29 September 2015

Date of Decision: 23 October 2015

 

 

DECISION  OF  THE  UPPER  TRIBUNAL

 

The appeal is dismissed.  The decision of the Deputy Traffic Commissioner for Scotland dated 24 February 2015 is confirmed.

 

Subject Matter: Required financial standing

 

Cases referred to: None

 

 

 

 

 

 

REASONS  FOR  DECISION

 

1. This is an appeal against the decision of the Deputy Traffic Commissioner for Scotland dated 24 February 2015.  Both the Deputy Traffic Commissioner and Upper Tribunal Judge Brodrick have refused a stay of that decision.

 

2. An oral hearing took place before us on 29 September 2015.  No appearance was made on behalf of M C T Group Travel Limited, the company, either by Mr A J Fee, its sole director or by a legally qualified representative.  No reason for absence was known to us.  We were satisfied that reasonable steps had been taken to notify the company of the hearing and that it was in the interests of justice to proceed.  Accordingly we did so. 

 

3. The facts and circumstances relating to the appeal appear from the documents on file before us and the Deputy Traffic Commissioner’s decision.  They are as follows:

 

(i) The company was granted a Standard International Public Service Vehicle Operators Licence on 1 August 1995.  That licence authorises fourteen vehicles.  Fourteen discs have been issued.  Six Community Authorisations are attached to the licence. 

 

(ii) Mr Fee became the sole director of the company on 25 April 2013.

 

(iii) It came to the notice of the Office of the Traffic Commissioner for Scotland that Mr Fee had replaced the former directors of the company. That constituted a material change in the circumstances of the licence holder that was relevant to the issue of the licence. 

 

(iv) Accordingly the Traffic Commissioner’s Office invited Mr Fee to attend a preliminary hearing on 2 August 2013 to consider the question of the financial standing of the company. 

 

(v) The result of the preliminary hearing was that a Public Inquiry was called which took place on 28 October 2013. After that inquiry, the Traffic Commissioner for Scotland directed on 11 November 2013 that the company should provide to her office original bank statements for three consecutive months for the period between November 2013 and April 2014 to demonstrate that the average  balance appearing  in those statements met the requirement

of sufficient financial standing.  The statements were required to be lodged by the end of April 2014.

 

(vi) Financial information in accordance with the Traffic Commissioner’s direction was lodged by the company on 6 May 2014.  That information indicated an average credit balance over three months of only £1,950 as at 6 May 2014.  The statutory financial standing requirement for the operator was £60,700. 

 

(vii) A further Public Inquiry was called for 13 August 2014.  It was adjourned.

 

(viii) A resumed Public Inquiry took place before the Deputy Traffic Commissioner on 1 December 2014.

(ix) At the Public Inquiry of 1 December 2014 further bank statements were made available to the Deputy Traffic Commissioner. These established an average credit balance for the company over three months of only £4,465. 

 

(x) At the above Public Inquiry information was also provided to the Deputy Traffic Commissioner that the company had sold five vehicles and that the proceeds of that sale amounted to £60,700 which was to be transferred to their bank account within a week of 1 December 2014.

 

(xi) The Deputy Traffic Commissioner also had available to him unaudited financial statements relating to the company.  These indicated a profit of £58,280 for the year ended 31 December 2011,  a loss of £27,417 for the year ended 31 December 2012 and a loss of £54,083 for the year ended 31 December 2013.  The Deputy Traffic Commissioner was also supplied with post enquiry evidence on behalf of the company.  That evidence included the following:

 

 

(a) A profit and loss account for the company relating to the period between 1 January 2014 and 9 September 2014, showing a net loss of £20,055.23.

 

(b) Further bank statements showing an average credit balance of £5,644

 

(c) Those bank statements did not indicate any payment into the company’s bank account of the sum of £60,700 referred to in sub-paragraph (x) above.

 

(d) A spread sheet dated 15 January 2015 which contained nothing consistent with the receipt by the company of the above sum.  That spread sheet also indicated a negative cash flow until May 2015 along with a net negative cash flow for 2014 - 2015 as a whole and a net profit for that year of £1,501. 

 

 

4. By his decision the Deputy Traffic Commissioner revoked the company’s operator’s licence with effect from 31 March 2015.  He did so on the ground that as at the date of the resumed Public Inquiry and up to the date of his decision the company had “not been of the required financial standing”.  He fixed the date of 31 March 2015 as the effective date of his decision to enable the company “to make alternative arrangements for the satisfaction of its contractual responsibilities”.  The Deputy Traffic Commissioner also decided that it was not appropriate for him to allow a period of grace in which the company would be given the opportunity to satisfy the financial standing requirement.  He also held that he was not satisfied that Mr Fee was no longer of good repute or that he lacked professional competence.

 

 

 

 

 

5. The company’s stated ground of appeal relates to the Deputy Traffic Commissioner’s treatment of the sum of £60,700 referred to in paragraph 3(x) and (xi) (c) - (d)  above.  Mr Fee has produced a statement, relating to a different bank account apparently in the name of the company, additional to those produced after the resumed Public Inquiry had taken place.  The statement in question relates to the period 21 November 2014 – 5 December 2014.  It shows a credit of £60,700 to the company on 4 December 2014,  presumably the proceeds of the sale of five of the company’s vehicles referred to in paragraph 3(x) above.  Crucially, this bank statement was not, for whatever reason, available to the Deputy Traffic Commissioner.  It is elementary that a fact finder cannot be faulted by an appellate tribunal for a failure to take account of evidence which was not before him.  We hold that, on the available evidence, the Deputy Traffic Commissioner was quite correct to refer, as he did in his decision to:

 

 

“The noteworthy absence from those bank statements of any payment which might be identified as consistent with the assurance in the Close Brothers Letter that £60,700 would be paid into the Operator’s bank account within the week following 1 December 2014:  “We shall transfer funds directly into your bank account this week”

 

 

6. In any event even if the bank statement discussed in paragraph 5 above had been available to the Deputy Traffic Commissioner we do not consider that it would have affected his decision.  That is because that bank statement, on which Mr Fee relies, indicates that the sum of £60,700 was credited to the account of the company to which that statement refers at a point when that account was overdrawn to the extent of £2,972.29.  The crediting of £60,700 thus had the effect of placing the company in credit only to the extent of £57,727.71.  Further and crucially, on the same day on which the credit of £60,700 was made a debit of £35,000 also took place.  Thus by the close of 4 December  2014 the company’s credit balance in the account to which the bank statement relied on by Mr Fee refers stood only at £22,727.71.  That sum was considerably below the sum of £60,700 required by statute for the company to have appropriate financial standing.

 

7. For the reasons given in paragraphs 5 and 6 above we reject the company’s stated ground of appeal.  More generally, we are satisfied that the Deputy Traffic Commissioner’s decision has not been shown to be plainly wrong in any respect.  The file indicates that many opportunities were given to Mr Fee to demonstrate that the company had the appropriate financial standing.  Even putting matters at the very best from the company’s point of view it is clear that their resources were very substantially below the level required for them to meet the financial standing requirement.   Accordingly we dismiss the appeal and confirm the Deputy Traffic Commissioner’s decision.

 

 

 

 

 

 

(Signed)

A J GAMBLE

Judge of the Upper Tribunal

Date: 23 October 2015