Upper Tribunal rejects appeal over refused licence application

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[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

IN THE UPPER TRIBUNAL Appeal No. UA-2023-000078-T ADMINISTRATIVE APPEALS CHAMBER ([NAME]) [2022] UKUT ([NAME])

ON APPEAL from A DECISION of the [NAME] for the North West of England Traffic Area

Before: Zachary Citron: Judge of the Upper Tribunal [NAME]: Member of the Upper Tribunal

[NAME]: Member of the Upper Tribunal

Appellant: [redacted] (in [NAME])

Representation For the appellant: [redacted]

Heard: remotely by telephone On: 6 September 2023

Date of decision: 13 September 2023

DECISION OF THE UPPER TRIBUNAL

The appeal is dismissed.

Subject matter

Refusal of application for licence

Cases referred to

[COMPANY] & anor v Secretary of State for Transport [2010] EWCA Civ 695. [NAME] (trading as [NAME]) [2016] UKUT 156 ([NAME])

[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

2 UA-2023-000078-T REASONS FOR THE DECISION

The decision appealed against

1. The appellant appealed to the Upper Tribunal against a decision of the [NAME] (the “[NAME]”) in a letter (the “decision letter”) dated 6 January 2023 refusing its application for a standard operator’s licence under the Goods Vehicles (Licensing of Operators) Act 1995. (In what follows, (unless the context otherwise indicates) references to “sections” or “s” are to sections of that Act.)

2. The decision letter said that the application had been refused under s13(5) and that the appellant had failed to demonstrate, from the information submitted, that it met all requirements for the licence. In particular, the financial information provided was not “acceptable” as it was bank statements for the “previous [NAME]”; based on the [NAME] deed provided, that [NAME] no longer existed; therefore, the appellant had failed to demonstrate that it met the requirements of s13D (requiring sufficient financial resources for maintaining vehicles in a fit and serviceable condition).

3. By way of explanation of these statutory references:

(a) under s13(5), the [NAME] must refuse an application for a standard licence if the [NAME] determines that any of the requirements that the [NAME] has taken into consideration in accordance with s13(1) are not satisfied;

(b) under s13(1)(b), on an application for a standard licence, the [NAME] must consider, if the [NAME] thinks fit, whether the requirement of s13D is satisfied (there is an identical provision on an application for a restricted licence, under s13(2)(b));

(c) the requirement of s13D is that the provision of the facilities and arrangements for maintaining vehicles in a fit and serviceable condition (under s13C(4)) is not prejudiced by reason of the applicant’s having insufficient financial resources for that purpose.

Background facts per documentation before the Upper Tribunal

4. The appellant’s online application to the [NAME] for a licence, received on 1 November 2022, was for a standard national licence, in respect of a single vehicle, and was made by a [NAME] of [NAME] (“[NAME]”) and (her son) [NAME] (“[NAME]”).

5. [NAME] is in her 80s and [NAME] is in his 60s. They live on a hill farm in Cumbria.

6. The [NAME] (“[NAME]”), in a letter to the appellant dated 8 November 2022, said that its application was incomplete and it must provide more information (which was listed in an annex to the letter), by 22 November 2022. The further information included financial information in the name of [NAME] and [NAME], showing that they had ready access to sufficient resources to support the application; [NAME] said that the type and size of licence applied for required £3,100

[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

3 UA-2023-000078-T to have been available during a 28 day period; it said the submitted bank statements were unacceptable as they “also” had the name of [NAME] ([NAME]’s husband and [NAME]’s father, who had passed away in July 2022); [NAME] asked for proof of “the change of name” or a bank statement with the up to date name.

7. [NAME] again wrote to the appellant, in a letter dated 28 November 2022, saying that its application remained incomplete; that it must send the additional documentation listed in an annex to the letter (which included the same financial information as in its 8 November 2022 letter)

8. During November 2022, the appellant sent [NAME] copies of bank statements for “[NAME]” (the trading name of [NAME] and [NAME]).

9. [NAME] ([NAME]’s daughter; [NAME]’s sister) attempted to reach [NAME] by telephone on 15 December 2022 (see paragraph 12(c) below for evidence that a telephone conversation between Ms [NAME] and [NAME] did take place on that day).

10. [NAME] wrote to [NAME] in a letter dated 26 December 2022 saying, amongst other things, that he only required a “restricted” licence.

11. [NAME] again wrote to [NAME] in a letter dated 19 January 2023, apologising for not getting his bank details to [NAME] in time, and saying he had just received them from the bank. He said he did not know why this had taken so long; the postal strike had not helped; he did not have internet banking on relied on family to help him (and they did not live close).

12. [NAME]’s internal records indicated that

(a) an operator’s licence had been held by the [NAME] that had traded as “[NAME]” (comprised of [NAME] and [NAME])

(b) following the passing of [NAME], a “change of entity letter” was issued by [NAME] on 20 October 2022; it appears to be this that prompted the appellant to apply for a new licence in early November 2022

(c) Ms [NAME] from [NAME] spoke with [NAME]’s daughter on 15 December 2022 by telephone; Ms [NAME] explained that once a partner died, the [NAME] was dissolved; by the end of the conversation, [NAME]’s daughter understood that bank statements would need to submitted in the names of one or both of the applicant partners

(d) s13A(2)(c) (financial standing) was relevant to the [NAME]’s decision to refuse the application

[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

4 UA-2023-000078-T (e) a copy of the [NAME] deed (for the [NAME] that had traded as “[NAME]”) had been provided to [NAME] and it confirmed that the [NAME] terminated on the death of one partner.

Grounds of appeal

13. In the appeal form, [NAME] said that

(a) the application for an operator’s licence came about following the death of his father

(b) primarily he wanted the licence for the welfare of his animals; he lived on a hill farm; in order to transport them safely e.g. to better grazing land or auction; as he was the primary carer for his elderly mother, he wanted to be away from the farm as little as possible

(c) the “initial” application was refused because of the incorrect bank details that were sent to [[NAME]] and that he forwarded to [NAME]; he then had to wait for the bank to send the correct information; and there was then the postal strike, so this information did not arrive in time; he had since sent the correct information

(d) he asked for consideration of the appeal and “a continuation of our licence”.

14. At the hearing, [NAME] said that he had had intended to apply for a “restricted” licence.

Jurisdiction of the Upper Tribunal

15. An applicant for an operator’s licence may appeal to the Upper Tribunal against refusal of the application: s37(1).

16. The Upper Tribunal has jurisdiction to hear and determine all matters whether of fact or law for the purpose of the exercise of its functions under an enactment relating to transport. It has the power to make such order as it thinks fit or, in a case where it considers it appropriate, to remit the matter to a [NAME] for rehearing and determination.

17. The Upper Tribunal may not take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal.

18. The task for the Upper Tribunal on an appeal is to conclude whether or not, on objective grounds, a different view from that taken by the [NAME] is the right one or (meaning the same thing) whether reason and the law impel the Upper Tribunal to take a different view (Bradley Fold Travel and anor v Secretary of State for Transport [2010] EWCA Civ 695 at [40]).

The Upper Tribunal’s factual findings

19. On the evidence before us, we find as follows:

[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

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(a) the application whose refusal is being appealed in this case was made by a [NAME] of [NAME] and [NAME]

(b) that application was for a standard licence; we make no finding as to whether [NAME] intended otherwise (at the time it was made) because, whatever his intention, it cannot alter the fact that the application actually made, was for a standard, not a restricted, licence (and, in any case, s13D applies to applications for restricted licences as much as to applications for standard licences)

(c) the appellant did not provide financial evidence for either or both partners, by 12 December 2022, the deadline set by the [NAME] (or indeed by 6 January 2023, the date of the [NAME]’s decision under appeal). We find that the 12 December 2022 deadline was a reasonable one, in the circumstances. Nor is this a case where the appellant earnestly tried to meet the 12 December 2022 deadline, but was frustrated by events beyond its control; we find that it was only sometime after 15 December 2022 (when [NAME], on behalf of the appellant, had a telephone conversation with Ms [NAME] of [NAME]) that the appellant appears to have started to make concerted efforts to obtain the required financial information (and, in the event, such information was not received, and forwarded on to [NAME], until over a month later).

20. We also find that the senior [NAME]’s statutory document number 2 (Finance) states on page 21 with regard to partnerships: “All financial documents should be in the same name(s) as one or both of the applicants or licence holders.” That document is issued (as guidance to TCs) under s4C of the Public Passenger Vehicles Act 1981.

Reasoning for the Upper Tribunal’s conclusions

21. This is an unfortunate case involving not-so-young individuals living deep in a rural part of the country; and who had fairly recently suffered a bereavement of a close relative. The [NAME] could have been more understanding of their circumstances. Fundamentally, however, the appellant failed to provide information required for its application within the (ample) time given by the [NAME] to provide it, or even to request an extension of time prior to the deadline. We are satisfied that the information requested by the [NAME] was reasonably required, given that the “old” [NAME] had dissolved.

22. Given the above, [NAME]’s decision to refuse the application cannot, in our view, be said to be plainly wrong. It follows that, under the law as it stands, the Upper Tribunal has no power to disturb it.

23. We note, by way of postscript, that, as was decided by the Upper Tribunal in [NAME] (trading as [NAME]) [2016] UKUT 156 ([NAME]), the [NAME] could have made a regulation 31(3) (of the Goods Vehicles (Licencing of Operators) Regulations 1995) direction not to treat the “old” [NAME]’s licence as terminated when [NAME] died but rather suspended it and then made a further direction (under regulation 31(4)) to treat the appellant [NAME] as if it were the

[NAME] and [NAME] (in [NAME]) [2023] UKUT 229 ([NAME])

6 UA-2023-000078-T holder of that licence (as it is carrying on the business) – such direction could have lasted for 12 months, or, in special circumstances, 18 months. But the law puts the power to make such directions squarely in the hands of the [NAME]; s37 gives no right of appeal to the Upper Tribunal for an ‘omission’ by the [NAME] to make such directions.

Zachary Citron Judge of the Upper Tribunal

[NAME] Member of the Upper Tribunal

[NAME] Member of the Upper Tribunal

Authorised for issue on 13 September 2023