Upper Tribunal Allows Appeal Over Lack of Written Evidence Consideration

[2018] UKUT 0091 (AAC)

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Appeal No.: T/2017/83

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER [NAME]

IN AN APPEAL FROM THE DECISION OF: SIMON EVANS, [NAME] FOR THE NORTH WEST OF ENGLAND DATED 24 NOVEMBER 2017

Before:

Judith Farbey QC, Judge of the Upper Tribunal Leslie Milliken, Specialist Member of the Upper Tribunal David Rawsthorn, Specialist Member of the Upper Tribunal

Appellant: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS] [POSTCODE] Date of hearing: 14 March 2018 Date of decision: 19 March 2018

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be ALLOWED to the extent that the case is remitted to the same [NAME] for a re-hearing in relation to all issues.

SUBJECT MATTER: [NAME]’s reasons for decision; fairness

CASES REFERRED TO: [COMPANY] v [NAME] for the North Western Area [2010] EWCA Civ 695

REASONS FOR DECISION

[2018] UKUT 0091 (AAC)

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1. This is an appeal from the decision of the [NAME] for the North West of England (‘the [NAME]’) made on 24 November 2017. By that decision, the [NAME] revoked [NAME]’s public service vehicle operator’s licence (‘PSV licence’) on the basis that he no longer met the requirement of good repute. The [NAME] also disqualified [NAME] indefinitely from acting as a transport manager.

2. The background can be shortly stated. [NAME] is a sole trader who has held a PSV licence since 1998 with two vehicles authorised at present. It is a condition of the licence that his vehicles should be kept when not in use at an operating centre specified on the licence and should not be parked away from those centres. The licence specified three operating centres. Following complaints from members of the public about where [NAME] had parked his vehicles, the Office of the [NAME] (‘OTC’) wrote to him saying that the [NAME] was considering the revocation of his licence on the grounds that he was using an unauthorised operating centre. [NAME] signed an undertaking not to park away from specified operating centres but the [NAME] was not content with it and decided to hold a public inquiry (‘[NAME]’).

3. Prior to [NAME] provided a letter of representations to the [NAME] and some accompanying documents. The letter, which was received by the OTC on 12 October 2017, informed the [NAME] that he would not attend [NAME] due (he claimed) to circumstances beyond his control. He took issue with factual aspects of the statement of a Traffic Examiner and disputed the photographs which the Traffic Examiner produced. He explained that he had parked the vehicles in unauthorised places because of difficult personal circumstances: the floods in Carlisle in December 2015 had forced him out of his home and into temporary accommodation for a lengthy period. This had caused considerable disruption for him, both personally and professionally. He apologised to members of the public inconvenienced by his actions which were out of character.

4. Consistent with what he had said in his letter, [NAME] did not attend [NAME]. In a short written decision, the [NAME] made a number of factual findings which led him to conclude that [NAME] had wilfully neglected his responsibilities, flagrantly disregarded the terms of the licence and failed to engage with the regulatory process. The [NAME] decided that, in such circumstances, it was appropriate and proportionate to revoke the licence and to exclude [NAME] from the industry.

5. In his grounds of appeal, [NAME] makes a number of different points. However we need deal only with his submission that the [NAME] ought to have considered his written submissions set out in the letter. [NAME] did not attend [NAME], he had clearly asked that his written evidence be considered. In granting a stay of his decision, the [NAME] accepted that he did not deal with [NAME]’s written evidence and also that his failure to do so amounted to a material irregularity. We agree that the [NAME] ought to have dealt with the written evidence. We are bound to set aside his decision because he did not do so.

6. It is understandable that the [NAME] was unimpressed by [NAME]’s decision not to attend the hearing. He was repeatedly advised in writing by the OTC that his

[2018] UKUT 0091 (AAC)

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7. However, the [NAME] has overlooked the entirety of [NAME]’s written evidence. [NAME] has held a licence since 1998 with no previous regulatory history. He had put forward mitigating circumstances, namely that his home had been extensively damaged by flooding. He had expressed remorse to the [NAME]. As a matter of fairness, the [NAME] ought to have given careful consideration to these matters in order to decide whether or not they should lead to loss of repute.

8. We have therefore concluded that this is a case where the law and the facts impel us to interfere with the [NAME]’s decision in accordance with the decision in [COMPANY] v [NAME] for the North Western Area [2010] EWCA Civ 695. We are not able to make findings of fact ourselves. It is appropriate to remit the case. As the [NAME] who decided the case has not actually considered either the written or any oral evidence from [NAME], we do not regard him as precluded from further involvement in the case which will be remitted for reconsideration before the same [NAME]. All issues of fact and law must be decided again.

9. At the hearing in the Tribunal, we indicated to [NAME] that this was our view. We also warned him to attend the re-hearing. We trust that he will make appropriate arrangements and attend the new hearing in order to put his case fully.

(signed on the original)

JUDITH FARBEY QC Judge of the Upper Tribunal 19 March 2018