Upper Tribunal Upholds Traffic Commissioner's Licence Refusal

[2016] UKUT 0391 (AAC) 1

Appeal No. T/2016/16 IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of [NAME_2], Traffic Commissioner for the West of England dated 23 February 2016

Before: Her Honour Judge J Beech, Judge of the Upper Tribunal [NAME_4], Member of the Upper Tribunal [NAME_5], Member of the Upper Tribunal

Appellant:

[redacted] For the Appellant: [redacted]

Heard at: Field House, 15-25 Bream’s [ADDRESS], [POSTCODE] Date of hearing: 23 August 2016 Date of decision: 30 August 2016

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that the appeal be DISMISSED

SUBJECT MATTER:- Application for restricted PSV licence; whether Appellant satisfies the main occupation requirements contained in s.13(3)(b) of the 1981 Act.

[2016] UKUT 0391 (AAC) 2

CASES REFERRED TO:- [COMPANY_11] & [NAME_12] v Secretary of State for Transport (2010) EWCA Civ. 695

REASONS FOR DECISION

1. This is an appeal from the decision of the Traffic Commissioner for the West of England (“[NAME_13]”) made on 23 February 2016 when she refused the Appellant’s application (“[NAME_6]”) for a restricted PSV operator’s licence under ss.13(3)(b) and 14ZC(1)(b) of the Public Passenger Vehicles Act 1981 (“the Act”).

Background

2. The factual background to the appeal appears from the documents and the [NAME_13]’s written note of her decision. By an incomplete application received on 12 November 2015, [NAME_6] trading as [NAME_8] applied for a restricted PSV operator’s licence authorising one sixteen seat minibus. His nominated operating centre was the forecourt of his home in Basingstoke. His main occupation was described as being the proprietor of [NAME_8]. The application informed the [NAME_13] that the restricted licence would be in addition to the work currently undertaken by his large local taxi company. [NAME_6] drove for approximately 15 hours per week and the vehicle would be used to enhance the work undertaken by seven, eight seat vehicles already operated by the firm. In section 15 of the application form, [NAME_6] recorded that he had 50 vehicles with less than 9 seats and all of those would continue to operate under a private hire licence granted by Basingstoke and Deane Borough Council.

3. On 4 December 2015, the Office of the Traffic Commissioner (“OTC”) wrote to [NAME_6] requesting the following information to be received no later than 18 December 2015:

a) Photographic evidence of the operating centre; b) Financial evidence demonstrating ready access to £3,100 during the previous 28 days; c) In relation to [NAME_6]’s main occupation: financial evidence of his main income including his previous year’s accounts and tax return in his name; the proposed number of hours and days the vehicle was to be operated; the type of work which [NAME_6] intended to carry out with the vehicle; confirmation of who would drive the vehicle, giving a specific breakdown of the allocated hours if more than one driver was to drive the vehicle.

The only evidence submitted in response to this letter was a photograph of the forecourt of [NAME_6]’s home address showing a minibus parked on it.

[2016] UKUT 0391 (AAC) 3

4. On 7 January 2016, the OTC wrote to [NAME_6] asking for the outstanding information and giving him a deadline of 13 January 2016. No response was received by the case worker dealing with the application by that date although it transpires that further information had been delivered by [NAME_6] by way of “special delivery” on that day. It would appear that the information did not reach the case worker until about 19 January 2016. As a result, on 13 January 2016, a submission was prepared for the [NAME_13]’s consideration. She was advised that [NAME_6] had failed to provide evidence of sufficient funds to operate the vehicle and it was noted that in 2012, [NAME_6] had been unsuccessful with a previous application in the name of [NAME_7] trading as [NAME_6] application had been refused because [NAME_6] had declared that he would be using the vehicle which was the subject of that application for 20 hours per week whilst his employment in his main occupation was only for 20 hours per week. The case worker in this present application recommended that as a result of [NAME_6]’s failure to respond to correspondence and emails (save for the provision of the photograph of the operating centre), his application should be refused without an offer of a public inquiry under paragraph 6 of the Public Service Vehicles (Operators Licences) Regulations 1995 (“the 1995 Regulations”) upon the basis that his conduct had been “frivolous”. This recommendation was supported by [NAME_14], a team leader within the OTC as [NAME_6] had apparently not provided any financial evidence as required under s.14 ZB(b) of the Act, nor sufficient details of his main occupation as required under s.13(3)(b) of the Act and he had not satisfied the requirement that he would be compliant with the law as required under s.14 ZC(1)(b) of the Act. The [NAME_13] agreed with the recommendations on 18 January 2016.

5. On 19 January 2016, the case worker re-visited her submission to the [NAME_13] as a result of receiving the additional information provided by [NAME_6] on 13 January 2016. Financial standing was satisfied by a bank statement. The letter from [NAME_6] informed the OTC that:

“1. Financial evidence of my main occupation is required. My accountant will be forwarding overnight. .. 2. As yet we have not started to tender for contract work using a PSV nor purchased one yet. 3. Initially we will tender for school contracts runs if the operator licence is granted. Therefore hours and days would be limited. 4. Driver training/tests to be completed before commencement.”

The case worker took the view that [NAME_6]’s application remained incomplete because he had not provided sufficient information/evidence in relation to his main occupation to enable the [NAME_13] to come to an informed decision. However, as [NAME_6] had in fact replied to the letter of 7 January 2016, she thought that the [NAME_13] might have felt that the previous recommendation under paragraph 6 of the 1995 Regulations was not appropriate. The case worker therefore recommended that the application be refused with the offer of a public

[2016] UKUT 0391 (AAC) 4

inquiry under s.13(3(b) of the Act. However, the recommendation by [NAME_14] that followed this review remained the same despite the provision of financial evidence and the [NAME_13] agreed with his recommendation and a refusal letter setting out the sections of the Act which [NAME_6] had failed to satisfy was sent to him on 23 February 2016.

6. On 23 March 2016, [NAME_6] appealed the decision. It then became apparent to the case worker within the OTC that [NAME_6]’s accountant had in fact sent documentation to the OTC which had been received on 15 January 2016. A review of that documentation, the original recommendations and the decision then took place on 13 April 2016. [COMPANY_15] had sent the following letter:

“We are the Accountants of the above named gentleman, acting on his behalf in connection with his tax affairs. We can confirm that [NAME_16] is self-employed as a taxi driver and also has a 50% share in a [NAME_17] operating a [NAME_17], trading as “[NAME_6]” as from 5 April 2008. Please note our client also has income from property. His tax affairs are dealt with at HM Revenue & Customs, Self Assessment ..”

Attached was a copy of [NAME_6]’s self assessment tax return for the year end 5 April 2014.

7. The Senior Team Leader who reviewed the documentation concluded that it did not provide sufficient evidence for the [NAME_13] to determine whether the main occupation requirement had been met. The letter from the accountant stated that [NAME_6] was a self employed taxi driver and that he had a 50% share in a [NAME_17] operating a [NAME_17]. However, the main occupation requirement was to be determined by reference to the business which had applied for the licence which was [NAME_6] trading as [NAME_8] as a result the [NAME_17] could not be taken into account even if financial information had been provided in relation to that enterprise. It was further noted that [NAME_6] had income from property but there was no financial evidence relating to that. The figures on the tax return, even if they were all relevant to the issue of main occupation, did not demonstrate that if [NAME_6] were to obtain a school contract using the vehicle, that his main income would not come from operation of the vehicle. The information did not therefore demonstrate that [NAME_6] satisfied the main occupation criteria and the recommendation to the [NAME_13] was that the previous decision should stand and that the papers for [NAME_6]’s appeal should be forwarded to the Tribunal.

8. The [NAME_13] considered the submission in detail. She was rightly concerned by the failure of the system to ensure that the submitted documentation was put before the relevant case worker in a timely

[2016] UKUT 0391 (AAC) 5

fashion. However, she could not fault the analysis of the evidence which had been undertaken and confirmed that [NAME_6]’s application remained refused.

Upper Tribunal Appeal

9. Prior to the hearing of this appeal, [NAME_6] wrote to inform the Tribunal that as a result of having to leave the country to “pay his respects”, he was unable to attend the appeal hearing but requested that [NAME_10], one of his employee’s could attend in his place. The Tribunal agreed.

10. The ground of appeal was that all of the financial information requested had been provided to the CLU along with an explanation of [NAME_6]’s occupation and business interests and that as a result, the application should have been granted. [NAME_9] added detail to the grounds of appeal which of course constituted new evidence. We heard [NAME_9]’s submissions because we were concerned by the paucity of information set out in the tax return that had been provided to the [NAME_13] and the level of income declared in it. [NAME_9] told us that [NAME_6] has three clear business interests. Firstly, he is a taxi operator, owning [NAME_8] (not referred to by the accountant). He employs 24 members of staff over three offices and he has 115 self employed drivers working for him. Secondly, he is also in [NAME_17] with his wife in a [NAME_17], owning 50 vehicles at the time of the application. Thirdly, he owns several properties which provided him with a rental income. In addition, he is a Sergeant in the Logistics Corps of the Territorial Army, receiving an income from that. [NAME_9] stated that the [NAME_13] had wrongly assumed that [NAME_6] was to be the driver of the vehicle when in fact it was going to be “sub-leased” to another driver although [NAME_8] would operate the vehicle.

The Tribunal’s decision

11. Dealing first with the assertion that the [NAME_13] had wrongly assumed that [NAME_6] would be the driver of the vehicle, we are satisfied that there is nothing in this point. We have asked ourselves the question: why did [NAME_6] give his home address as the operating centre and a photograph of the forecourt of his home with a minibus parked on it if he was not putting himself forward as the main driver of the vehicle? In the absence of any proper explanation as to how it was proposed that the vehicle was to be operated, the only conclusion that the [NAME_13] could come to was that [NAME_6] was going to be the main driver.

12. Turning then to the main occupation requirement and the financial evidence submitted in support of the assertion that [NAME_6]’s main occupation would be something other than the operator of the vehicle, neither the tax return nor the covering letter are of any assistance. The return itself is in [NAME_6]’s name and does not relate to him trading as

[2016] UKUT 0391 (AAC) 6

[NAME_8]. It simply has two headings: pay from all employments (which we have been told relates to income from the Territorial Army) and profit from self-employment. There is no reference to the sources of the income or to the nature of his business or [NAME_17] interests. We asked [NAME_9] why [NAME_6]’s declared income is so low bearing in mind his various business interests. We were told that he invests most of his income in the acquisition of cars to be used by the [NAME_17] in its leasing business and in the acquisition of properties to add to his rental portfolio. [NAME_9] was not a position to explain why the business investments of [NAME_6] in his name were not set out on the tax return submitted to the [NAME_13] as those investments would have been paid for out of gross income. If there was in existence other information which had been submitted to HMRC, that too should have been disclosed. It is impossible to say from the information on this document or the letter from the accountant, what income [NAME_6] receives from [NAME_8]. We are satisfied that the [NAME_13]’s decision that [NAME_6] had failed to provide sufficient evidence of the main occupation requirement was plainly right.

13. Finally, we turn to the proposed business plan in relation to the vehicle and the submission that it was to be “sub-leased” to a driver. Without details of the proposed sub-lease, there is an issue as to whether the restricted licence should be held by [NAME_6] trading as [NAME_8] or the sub-lessee. [NAME_6] needs to obtain appropriate advice about his business model.

14. In all of the circumstances, we are satisfied that the [NAME_13]’s decision cannot be faulted. Neither the law nor the facts of this case impel us to come to a different view to that of the [NAME_13] as per the test in [COMPANY_11] & [NAME_12] v Secretary of State for Transport (2010) EWCA Civ. 695.

15. The appeal is dismissed.

Her Honour Judge J Beech 30 August 2016