Neutral Citation Number: [2012] UKUT 285 (AAC) Appeal No: T/2012/16

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

 

ON APPEAL FROM THE DECISION OF RICHARD TURFITT,

TRAFFIC COMMISSIONER for the EASTERN TRAFFIC AREA,

DATED 22 MARCH 2012

 

 

Before:

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

David Yeomans, Member of the Upper Tribunal.

George Inch, Member of the Upper Tribunal.

 

Appellant:

 

JSO LOGISTICS LTD

 

Attendance:

 

For the Appellant: No attendance or representation.

 

Appeal heard at: Victory House, Kingsway, London

 

Date of hearing: 13 July 2012

 

Date of decision: 14 August 2012

 

 

DECISIONS OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed

 

 

Subject Matter: Financial Standing

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area made on 22 March 2012 when he revoked the operator’s standard national goods vehicles operator’s licence under sections 26(1)(h) and 27(1)(a) of the Goods Vehicles (Licensing of Operators) Act 1995.

 

2)     The factual background to this appeal appears from the documents, the transcript and the Traffic Commissioner’s decision and is as follows:

(i)     The Appellant is the holder of a standard national goods vehicles operator’s licence authorising 3 vehicles and no trailers. On 1/11/2010 Mr Michael Otto, Director, applied on the company’s behalf for an increase in authorisation to 6 vehicles and 3 trailers. The application form enclosed the offer of a bank overdraft and some accounting information.

(ii)    The office of the Traffic Commissioner (OTC) wrote to the appellant on 9/11/2010 seeking financial evidence to demonstrate ready access to funds of £30,600 over a three month period, and advising that the overdraft offer did not count – it being a mere offer, which could be refused. The operator was asked to provide the last 3 months original bank statements along with proof of any overdraft facility in place. The evidence requested was not provided and so the OTC wrote again, by 1^st class post and recorded delivery, on 21/12/2010. No written response was received.

(iii)  A member of staff at the OTC then telephoned Mr Otto and, eventually, spoke to him. He said he had been in and out of hospital and so a further seven day extension was granted for the evidence to be provided. Nothing further was received, and it was noted that, whilst the OTC was waiting for evidence of financial standing, amendments to specified vehicles had been made, suggesting that business was continuing despite Mr Otto’s ill health.

(iv)  The Traffic Commissioner considered the papers on 27/5/2011 and decided to allow the operator a further 14 days to address the issues. The appellant responded by providing a factoring annex which appeared to indicate that the company had gone over the limit by considerable amount. This had been faxed by “Bibby’s” but was not signed by them. No bank statements were provided. Additionally, a letter was received from the appellant stating that they no longer required the increase in authorisation and wished to withdraw their application.

(v)   The difficulties recited above, however, had generated concern generally as to the appellant’s financial standing. Even in relation to its existing authorisation the appellant would need to demonstrate access to readily available capital and reserves of £17,100 – which it had not done. Accordingly, upon instructions from the Traffic Commissioner, the OTC wrote to the operator on 9/9/2011 proposing to revoke the operator’s licence on the grounds of material change, and failure (when asked to do so with reasonable cause) to demonstrate appropriate financial standing. The appellant was given an opportunity to request a public inquiry within 21 days. The appellant responded by submitting an email from his factoring provider together with a “year-to-date report” covering the period September 2010 to August 2011. However, this report did not demonstrate financial standing, and the absence of bank statements, also meant that there was no financial background or context to enable the report to read sensibly. There was no request for a public inquiry.

(vi)  In order to ensure that all known addresses had been written to, a further ‘minded to revoke' letter was sent on 24 February 2012. No response was received. The Traffic Commissioner therefore revoked the licence and appropriate letters were sent on 23 March 2012.

(vii) The grounds of appeal to the Upper Tribunal assert that

·       adequate evidence was submitted to the OTC (although this assertion is not specific, and nothing that was allegedly sent to the Traffic Commissioner was submitted with the Notice of Appeal); and

·       the revocation letter came as a surprise, out of the blue.

 

3)     There was no attendance at the hearing of this appeal. Mr Otto sent an email to the tribunal at 08:50 on the day of the hearing stating that he was unable to attend but asking that the tribunal take a number of matters into account. In these circumstances, the tribunal decided to proceed to determine the appeal on the papers, taking Mr Otto’s representations into consideration.

 

4)     The tribunal has a copy of the OTC file, a copy of which had also been made available to the appellant. The correspondence is clear. Although Mr Otto maintains that, running parallel with the correspondence, were various telephone calls and conversations with staff that are totally inconsistent with the documentary record, we have no difficulty in concluding that the papers supplied demonstrate that the appellant was given every opportunity to demonstrate financial standing, and failed to do so. We find Mr Otto’s factual claims to be unlikely. For example, we felt that it was unlikely that a member of staff at the OTC would have agreed to pro-actively make contact with the appellant’s accounts manager at the factoring company in order to glean further financial information, and even more unlikely that the factoring company would (as claimed) have “gladly” dealt with “any questions the Traffic Commissioner may have”. This is not the way the system works and client confidentiality should, in any event, prevent such a conversation taking place. Rather, it is for the operator, when asked, to demonstrate appropriate financial standing by submitting acceptable, original documentary evidence.

 

5)     This operator failed to submit appropriate evidence over an extended period. In our judgment here was little more the Traffic Commissioner could reasonably have done and, given the difficulties, it is not surprising that the Traffic Commissioner decided that he was justified in calling for full evidence of financial standing in relation to the existing licence. The Traffic Commissioner’s approach and decisions disclose no error of law and the decision to revoke this licence was plainly justified on the facts. The appeal is dismissed.

 

 

Judge Mark Hinchliffe, DCP

14 August 2012