Neutral Citation Number: [2014] UKUT 0385 (AAC)                 Appeal No.  T/2014/22

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Kevin Rooney Traffic Commissioner for the 
North East of England  
Dated 25 March 2014

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

Appellant:
ROBERT KARWOWSKI t/a ROBERT TRANSPORT

	 
Attendances:
For the Appellant: The Appellant did not appear and was not represented

Heard at:	Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing:	23 July 2014
Date of decision:	27 August 2014

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED.

SUBJECT MATTER:-	 Financial standing; Professional competence; Miscellaneous, (conditions, statements of intent, undertakings, material change)	

CASES REFERRED TO:-  None

REASONS FOR DECISION

1.	This is an appeal from the decision of the Traffic Commissioner for the North East of England to revoke the goods vehicle operator’s licence held by the Appellant. 
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 authorising 1 vehicle, with an operating centre at 2 Lessarna Court, Bowling Back Lane, Bradford, BD4 8ST.  The licence was granted in March 2013, with a condition attached.  The condition required the Appellant to provide the Traffic Commissioner with original bank statements for a period of 28 days and other financial details, (for example overdraft facility agreements or credit card details) showing that the Appellant had access to facilities and/or funds sufficient to meet the requirement of appropriate financial standing.  The condition required that the details were to be provided by 31 May 2013 and that they were to cover the month of April 2013. 
(ii)	In order to meet the requirement to be of appropriate financial standing for an operator’s licence authorising one vehicle the Appellant was required to show that he had £7,200 available.
(iii)	In June 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant requesting the financial evidence required by this condition.  The Appellant replied by sending bank statements in three different formats, but all for the same account.  The average balance on the account was not sufficient to show that the Appellant was of appropriate financial standing.
(iv)	On 23 July 2013 the OTC wrote to the Appellant to give him a final opportunity to provide the necessary financial evidence.  A reply was received from the designated transport manager.  He informed the OTC that he had resigned and that there had been a change of maintenance contractor and operating centre.
(v)	The OTC sent two further letters to the Appellant.  No response was received to either of these letters.
(vi)	On 3 January 2014 the OTC, wrote to the Appellant concerning the condition attached when his operator’s licence was granted. The letter stated that the Traffic Commissioner had been informed that the condition had not been met.  It added that he was also aware that letters sent in relation to this matter had not been answered.  The letter warned the Appellant that the Traffic Commissioner was considering making a direction to revoke the licence under several provisions in s. 26(1) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"], and under s. 27(1) of the 1995 Act.  The letter gave the Appellant the opportunity to make representations, giving a date for their receipt of 24 January 2014.  It also offered the Appellant the opportunity to request a Public Inquiry, adding that any such request had to be received by 24 January 2014 and stating that if no such request was received the licence would be revoked. This letter was addressed to the Appellant at the operating centre and at another address in Bradford.
(vii)	On 19 February 2014 letters identical to that sent on 3 January were sent to the same addresses.  It appears that the letters of 3 January 2014 had been sent without the formal authorisation of the Traffic Commissioner. The letters of 19 February 2014 were therefore sent after formal authorisation had been given.  
(viii)	In addition, on the same day, a letter in the same terms was sent to a Mr T. Bridge, at an address in Wigan.  This letter was sent to him in his capacity as the new designated transport manager for the Appellant.
(ix)	It appears that Mr Bridge telephoned the OTC to say that he had spoken to the Appellant.  He gave an assurance that financial evidence would be sent on 27 February 2014.  No financial evidence was received.
(x)	On 24 March 2014 a member of the OTC staff spoke to Mr Bridge, who said that he was not aware that he had failed to send the financial evidence.  He added that his wages had not been paid for three weeks and that he would be resigning as transport manager.
(xi)	On 24 March 2014 a submission was sent by the OTC to the Traffic Commissioner.  It set out the matters summarised above and recommended that the Appellant’s licence should be revoked.  The Traffic Commissioner agreed with that recommendation adding that: “Mr Karwowski has now had every opportunity to show finances and that licence must now come to an end for the reasons given and under the following legislation”.  The Traffic Commissioner relied on s. 26(1)(b), breach of condition, s. 26(1)(e) failure to fulfil a statement of intent, s.26(1)(f), failure to fulfil undertakings, s. 26(1)(h) material change in circumstances and s. 27(1), the Appellant was no longer of appropriate financial standing or professionally competent.
(xii)	On 25 March 2014 the OTC wrote to the Appellant to inform him that the Traffic Commissioner had revoked the licence on the grounds summarised in paragraph 2(xi) above.  The letter was sent to the address of the original operating centre and to the other address in Bradford.  It was also sent to Mr Bridge.
(xiii)	On 14 April 2014 the Appellant filed a Notice of Appeal.  In his grounds of appeal he said that he had invested all his life savings in the business and had never applied for any form of loan to support the business.  He went on to explain that delays in payment pushed him into an arrangement with Bibby Financial Services to enable him to have immediate access to his funds.  He added that he had faced difficulties with his transport manager and his accountant and he had been pushed into finding a new operating centre.  He said that he had spent all the profits made by the business on unexpected costs and that he had faced problems due to the fact that he was new to the business and that English was his second language.  He added that the business was well-established, with regular customers, he was making a profit and had never been fined or had to claim on insurance for damage caused to goods that he was transporting.  He stated that he had access to £7,800 on his account and that he had submitted bank statements and a statement from Bibby Financial Services.  We assume that these are the documents which follow the Notice of Appeal in the appeal bundle.
3.	When the appeal was called on, shortly after mid-day, the Appellant was neither present nor represented.  We were informed that no message had been received by the Tribunal staff, either requesting an adjournment, or explaining that the Appellant was delayed or otherwise unable to attend.  In those circumstances we decided to hear and determine the Appeal in the absence of the Appellant.  Accordingly we reviewed the file to consider whether the decision of the Traffic Commissioner was plainly wrong.
4.	We are quite satisfied, looking at the matter on the basis of the information available to him at the time that he took his decision that the Traffic Commissioner was plainly right to revoke the licence on all the grounds relied on.  We went on to consider whether there was any other material which would justify us in overturning that decision.
5.	The appeal file contains a quantity of bank statements, in various formats, though, in the main they all relate to the same account.  Some of these are irrelevant because they relate to a period before the licence was granted.  Some, though we cannot precisely identify which, may have been before the Traffic Commissioner, (see paragraph 2(iii) above).  It is clear from that sub-paragraph and from what we have seen of the bank statements for that period that the average credit balance was insufficient to meet the requirement to be of appropriate financial standing.  
6.	In relation to those bank statements that were not put before the Traffic Commissioner it would appear that they all relate to a period before the date of the decision.  In other words the Tribunal could only take them into account if the Appellant persuaded us to allow him to put forward fresh evidence, which was not before the Traffic Commissioner.  When considering whether or not to admit fresh evidence the Tribunal has consistently followed the practice of the Court of Appeal and has insisted that four conditions must be met before fresh evidence can be admitted.  It seems to us that it is the second and third conditions, which are decisive in the present case.  Those conditions are:
“(ii) It must be evidence which could not have been obtained, with reasonable diligence, for use by the Traffic Commissioner before making his decision.
(iii) It must be evidence such that, if given, it would probably have had an important influence on the result of the case, though it does not have to be shown that it would have been decisive”.
7.	In relation to condition (ii) the Appellant has provided no explanation as to why the bank statements could not with reasonable diligence have been made available to the Traffic Commissioner in answer to the various letters requesting financial evidence.  We can see no basis on which the Appellant has any reasonable prospect of meeting condition (ii).
8.	In relation to condition (iii) it does not appear to us that the bank statements now provided come close to showing that the Appellant can meet the requirement to be of appropriate financial standing.  This is a most important requirement.  It is intended, amongst other things, to ensure that an operator has the funds to enable vehicles to be maintained and repaired promptly and properly so that they do not present a danger to the public in general and road users in particular when driven on public roads.  It is a continuing requirement that must be met throughout the life of an operator’s licence.  As a result it is not enough for an operator to point to the occasional day on which the balance exceeds the requirement.  What an operator is required to demonstrate is that, on average, the available funds meet, or preferably exceed, the amount required for the number of vehicles authorised.
9.	We propose to treat the Notice of Appeal as including an application to admit fresh evidence.  In our judgment, for the reasons given in the preceding paragraphs the Appellant is unable to meet either the second or the third of the conditions for the admission of fresh evidence.  The application for the admission of fresh evidence is therefore refused.
10.	For these reasons we are satisfied that the Traffic Commissioner was correct to revoke the licence on all the grounds he set out.  The appeal is accordingly dismissed with immediate effect.  

His Hon. Michael Brodrick, Judge of the Upper Tribunal, Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.
27 August 2014