Neutral Citation Number: [2010] UKUT 151 (AAC)

Appeal No.  T/2010/005
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF
Philip Brown Traffic Commissioner for the 
South Eastern and Metropolitan Traffic Area Dated 11 January 2010

Before:
His Hon. Michael Brodrick, 	Judge of the Upper Tribunal
Leslie Milliken, 			
David Yeomans		

Appellant:
GARY JAMES, t/a GARY JAMES TRANSPORT

	 
Attendances:
For the Appellant: The Appellant appeared in person

Heard at:	Victory House
Date of hearing:	31 March 2010
Date of decision:	20 April 2010

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED and that this Order shall take effect at 2359 on 21 April 2010 UNLESS the Appellant has lodged a completed and compliant application for a new licence by that date, in which case this Order shall come into effect on the determination of the application or the granting of an Interim Licence, whichever first occurs.										

REASONS FOR DECISION

1.	This is an appeal from the decision of the Traffic Commissioner for the South Eastern and Metropolitan Traffic Area to revoke the Standard National Operator’s licence held by the Appellant on the ground that the Appellant had contravened a condition attached to the licence, that there had been a material change in circumstances and that the Appellant was no longer of appropriate financial standing.
2.	The factual background to the appeal appears from the documents and the Traffic Commissioner’s decision letter and is as follows:-
(i)	The Appellant is the holder of a Standard National Goods Vehicle Operator’s Licence.  It is not clear from the papers how many vehicles he is authorised to use.
(ii)	On 10 August 2009 VOSA wrote to the Appellant concerning a report which was received following an inspection carried out at the operating centre on 21 July 2009.  As a result of the report VOSA pointed out that there were insufficient Preventative Maintenance records available to cover the full 15 month period required, there was a poor MOT test history and a poor prohibition history.  In particular four prohibitions had been issued, between 2005 and 2008, to four separate vehicles. Before consideration was given to referring the matter to the Traffic Commissioner the Appellant was given an opportunity to submit a written explanation and to submit assurances as to the measures to be taken to prevent a recurrence.  The Appellant was given 14 days in which to reply.  Proof of delivery shows that this letter was delivered on 12 August 2009.
(iii)	By 2 September 2009 the Appellant had not replied to this letter.  He was given a further 7 days and warned that failure to reply could lead to him being called to a Public Inquiry by the Traffic Commissioner.  It appears that he did not reply to this letter either.
(iv)	On 3 November 2009 the Office of the Traffic Commissioner, (“the Traffic Office”), wrote to the Appellant giving him an opportunity to make representations before the matter was submitted to the Traffic Commissioner.  Concern was expressed about the matters raised following the maintenance inspection, about the fact that there had been no reply to the letters from VOSA and no notification of any change of address and concern was also expressed as to whether the Appellant had sufficient financial resources.  The Appellant was warned that failure to demonstrate appropriate financial standing would result in the mandatory revocation of the licence.  
(v)	On 17 November 2009 the Appellant telephoned the Traffic Office concerning the letter of 3 November 2009.  It appears from the brief note of that call that the Appellant indicated that he would provide financial evidence by means of a statutory declaration, a blank copy of which was posted to him.
(vi)	On 4 December 2009 the Traffic Office wrote to the Appellant pointing out that financial evidence and a completed statutory declaration had not been received.  The Appellant was given until 18 December 2009 to provide this material and he was warned that if it was not received by that date that the matter would be referred to the Traffic Commissioner.  The Appellant did not reply to this letter.
(vii)	On 11 January 2010 the Traffic Office wrote to the Appellant informing him that the Traffic Commissioner had revoked the licence, with effect from 8 January 2010, on the ground that the Appellant was no longer of appropriate financial standing and that there had been a material change in circumstances, namely a failure to respond to correspondence.
(viii)	On 15 January 2010 the Appellant telephoned the Traffic Office.  According to the note made of that call the Appellant claimed that an extension of the deadline to 8 January 2010 had been agreed in an earlier telephone call, though no note of such a call could be found.  It was pointed out to the Appellant that even if an extension had been agreed the necessary documents had still not been received.
(ix)	On 18 January the Appellant wrote to the Traffic Office asking for the decision to be ‘stayed’.  He said that he would be picking up a signed and stamped affidavit by the end of the week.  He explained that the delay had been caused by the ‘recent bad weather and his doctor’s advice that while on medication he should not venture out or drive’ with the result that he had been unable to see his Solicitors.  Having considered this explanation the Traffic Commissioner granted a stay.
(x)	By a Notice of Appeal dated 18 January 2010 the Appellant appealed against the Traffic Commissioner’s decision to revoke the licence.  He repeated the point that financial information was available but had been delayed by the bad weather and said that he had always responded to letters, though he accepted that it had been a mistake to do so by phone.
3.	At the hearing of the appeal the Appellant appeared in person and repeated the matters summarised above.  He said that he had been attempting to provide up to date financial information but had been frustrated by the bad weather but now had the material available.
4.	We had to inform the Appellant that we were required to review the decision of the Traffic Commissioner on the basis of the material available to him at the time that the decision was taken and that Parliament had expressly prevented us from taking into consideration: “any circumstances which did not exist at the time of the determination which is the subject of the appeal”, [see Paragraph 9(2) of Schedule 4 to the Transport Act 1985].
5.	It follows that we have to consider whether the Traffic Commissioner was ‘plainly wrong’, on the basis of the material before him to revoke the Appellant’s licence.  Given that there was no material on which the Traffic Commissioner could have been satisfied that the Appellant continued to meet the requirement to be of appropriate financial standing we are satisfied that far from being plainly wrong the decision was plainly right. 
6.	By way of postscript we would add this.  We entirely accept and understand the temptation for busy operators to respond to important letters by using the telephone, most probably a mobile phone.  The Appellant frankly and, in our view rightly, accepted that responding by phone was a mistake.  The problem with a telephone response is that there is no record of precisely what was said though in most cases staff have adopted the sensible practice of making a note of the gist of the conversation which is then placed on the file.  We commend this practice whenever the phone is used but we would urge operators to respond to any important letter from VOSA, the Central Licensing Unit or the Traffic Office either by sending a letter or by using e-mail so that a permanent record is available of exactly what was said.
7.	The appeal is therefore dismissed.  The Tribunal’s order will come into effect at 2359 on 21 April 2010 unless by that date the Appellant has submitted a complete and compliant application for a new licence, (by this we mean a fully completed application accompanied by all the relevant documents).  If such an application is submitted the coming into effect of the Tribunal’s order will be further postponed until the determination of the application or the grant of an interim licence, whichever first occurs.

Michael Brodrick,  Judge of the Upper Tribunal, 
Principal Judge for Traffic Commissioner Appeals.
20 April 2010