Neutral Citation Number: [2013] UKUT 0620 (AAC)                            Appeal No: T/2013/59

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF SARAH BELL, 
TRAFFIC COMMISSIONER for the WEST OF ENGLAND TRAFFIC AREA, 
DATED 2 DECEMBER 2013

Before:
Judge M Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.
Mr L Milliken, Member of the Upper Tribunal.
Mr D Rawsthorn, Member of the Upper Tribunal.

Appellant:
SALLY FULLER LTD t/a GO COURIERS

Attendance:
For the Appellant: 	No attendance or representation

Appeal heard at: 	Field House, Breams Buildings, London
Date of hearing: 	15 November 2013
Date of decision: 	6 December 2013

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed.

Subject matter:	
Financial Standing

Cases referred to:
None

REASONS FOR DECISION:

1)	This was an appeal from the decision of the Traffic Commissioner for the West of England Traffic Area made on 31/7/2013 when she revoked the appellant’s standard national operator’s licence under the provisions of section 27(1)(a) and section 13A2(c) of the Goods Vehicles (Licensing of Operators) Act 1995 – “the Act”.

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 four vehicle and no trailers. The licence had been granted in January 2006 and, at the time of a maintenance investigation in March/April 2013, the operator had one vehicle in possession.
(ii)	The maintenance investigation was marked “unsatisfactory” for ten separate reasons listed in the Vehicle Examiner’s report. A separate Traffic Examiner’s report noted no serious infringements.
(iii)	The operator was called up to a public inquiry by letter dated 1/7/2013. Amongst the grounds raised was the question of financial standing. The call-up letter advised the operator that the Traffic Commissioner had to be satisfied that the company had sufficient financial resources to meet the requirements of the legislation and, in particular, must demonstrate that it had readily available the sum of approximately £19,200. Consequently, the operator was asked to provide all relevant up-to-date financial information including:
•	the latest profit and loss accounts and balance sheet for the business;
•	original bank statements for the last three months; and
•	details of any overdraft facility or other loan arrangement.
(iv)	In two letters dated 8/7/2013 addressed to the Traffic Commissioner’s office Ms Fuller wrote that:
“I have recently received a summons to attend a public inquiry hearing on 31st July. I am unable to attend, but would like to make clear that I will accept in full the findings of the Commissioner. It is with deep regret that I have decided to surrender my operator’s licence, and am in the process of sending back all the necessary documentation to the stated address”.
(v)	No evidence of financial standing was submitted.
(vi)	The Traffic Commissioner decided that the public inquiry should proceed, and she heard evidence from both the Vehicle Examiner and the Traffic Examiner.
(vii)	In a written decision dated 31/7/2013 the Traffic Commissioner noted that she had received no evidence demonstrating that the maintenance concerns had been addressed, and had received no evidence of financial standing. However, she also found that, had finance been demonstrated - “it is unlikely this would be a revocation case”. She therefore revoked on finance only and directed that any future applications that sought to involve Ms Fuller be referred to a Traffic Commissioner, and should not be dealt with by staff under delegated authority.
(viii)	By letter dated 22/8/2013 addressed to the tribunal, Ms Fuller acknowledged that she had been planning to surrender her licence. However, she said that she would now like to be able to remain ‘spot hiring’ vehicles once or twice a month.
(ix)	By subsequent letter dated 5/11/2013 addressed to the tribunal, Ms Fuller stated that she would be unable to attend at the hearing of the appeal. However, she noted that the revocation had been on the basis of financial standing only, and she submitted a bank statement covering the period 31/8/2013 to 5/9/2013. The grounds of appeal assert that Ms Fuller had not been told that financial standing would have such a major impact.

3)	At the hearing of this appeal, the Appellant failed to attend, and was not represented 

4)	Paragraph 9(2) to Schedule 4 to the Transport Act 1985, (replaced, using the same words, by paragraph 17(3) of Schedule 4 to the 1985 Act as amended), provides that - “The tribunal may not on any such appeal take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal”.  The prohibition is absolute.  The Tribunal has no discretion to take into consideration anything that did not exist at the time of the decision under appeal. Consequently, we did not consider the financial information submitted, covering a period of just 6 days, after the public inquiry had taken place.

5)	In our view the call-up letter made the position clear. The Traffic Commissioner had to be satisfied that the company had sufficient financial resources to meet the requirements of the legislation and, as part of this process, needed to see the latest profit and loss accounts and balance sheet for the business; original bank statements for the last three months; and details of any overdraft facility or other loan arrangement. Unfortunately, this information was not sent to the Traffic Commissioner prior to the public inquiry.

6)	It follows that, in relation to financial standing, the Traffic Commissioner made the only decision that she could have made in the circumstances. Her decision was plainly right. An appeal to the tribunal does not involve a re-hearing of the matters that fell to be decided by the Traffic Commissioner – it is, rather, a consideration of whether or not the Traffic Commissioner’s decision stands up to scrutiny and, subject to very limited exceptions, will be based upon the information and evidence actually before the Traffic Commissioner at the time he or she made the decision appealed against.

7)	Accordingly, this appeal is bound to fail, and is dismissed.

Judge Mark Hinchliffe, DCP
6 December 2013