Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 44 (AAC)

Fecha: 06-Sep-2021

Section 1

IT IS HEREBY ORDERED that the appeal referenced UA-2021-000275-NT is ALLOWED and the appeal referenced UA-2023-000508-NT is ALLOWED in part

SUBJECT MATTER:- Repute; burden of proof

CASES REFERRED TO:- NT/2013/52 & 53 Fergal Hughes v DOENI & Perry McKee Homes Ltd v DOENI; Bradley Fold Travel Ltd & Peter Wright v Secretary of State for Transport [2010] EWCA Civ. 695; Muckit ((2005) EWCA Civ 1124).

Crompton (T/a David Crompton Haulage) v. Department of Transport North Western Area [2003] EWCA Civ 64;

REASONS FOR DECISION

Initial background

This is an appeal from decisions of the Head of the Transport Regulation Unit, (“Head of the TRU”) to revoke both Appellants’ goods vehicles operator’s licences.

The factual background to the appeals, which is somewhat complex, appears from the documents and the Head of the TRU’s decisions and is as follows:-

(i)

Robert Leslie Bell & Peter Erwin Bell, t/a Bell Transport (Upper Tribunal reference UA-2021-000275-NT), are the holders of Standard International goods vehicle operator's licence ON2002503 which authorises the use of 10 vehicles and 50 trailers from an operating centre notified to the Department as … Antrim …. Both partners are also listed as transport managers on the licence. The operator has held this licence since 20 June 2017.

(ii)

Robert Leslie Bell, operating as a sole trader, (Upper Tribunal reference UA-2023-000508) also held Standard International goods vehicle operator's licence ON1114203 which authorised the use of 5 vehicles and 5 trailers from an operating centre of the same address. That licence was held since 01 February 2010 and revoked from 03 September 2021.

(iii)

On 24 June 2021 the Department wrote to Robert Leslie Bell, sole trader, requesting surrender of that licence due to a change of entity, and a declaration being made on the partnership application form that the sole trader licence would be surrendered upon grant of that new application. No such request to surrender the licence was received and, as at the time of the June 2021 letter, no vehicle had been specified on the licence since 3 September 2019.

(iv)

A response was received from the sole trader on 1 July 2021 stating that he did not wish to surrender the licence and planned to add a vehicle once repairs were made. On 8 July 2021 the Department inquired why the sole trader licence was required when there had been a change of legal entity, but no response was received to that request for information.

(v)

This led to the Department writing to the sole trader on 12 August 2021, proposing to revoke that licence on the following grounds:

Section 23(1)(d) that the licence-holder made, or procured to be made, a statement of fact that, whether to the licence-holder's knowledge or not, was false, or a statement of expectation that has not been fulfilled; namely that you declared your licence would be surrendered on grant of the new partnership's licence.

Section 23(1)(g) that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence; namely that there was a change in entity to a partnership.

Section 24(1)(a) as the licence holder no longer appears to satisfy the requirement to have an effective and stable establishment under the provisions of section 12A(2)(a) (as determined in accordance with regulations and Article 5 of the 2009 Regulation) in view of there being no vehicle specified on the licence and no details about access to a vehicle since removal of the last vehicle in 2019.

Section 24(1)(a) as the licence holder no longer appears to satisfy the requirement to be of good repute under the provisions of section 12A(2)(b) (as determined in accordance with regulations and Article 6 of the 2009 Regulation) in view of an apparent failure to respond to correspondence with the Department and the apparent false statement made on the partnership's application for a licence.

(vi)

The August 2021 letter went on to further state, in bold text, "You should note that revocation of the licence would render unlawful the operation of vehicles for which an operator's licence is required. Any such revocation may affect any other current licences or future applications involving anyone named on the licence record." The operator was also offered the opportunity to request a public inquiry to offer evidence as to why the licence should not be revoked.

(vii)

As no response was received to the August 2021 letter the Department wrote to the sole trader on 06 September 2021 notifying him that the licence was being revoked with immediate effect. This letter was also emailed to the operator on 7September 2021. It is noted that an application to surrender the licence, signed by the operator on 7September 2021, after the revocation, was subsequently received by the Department.

(viii)

No request was received for the Department to review its decision, nor was an appeal submitted (within the prescribed time limits for making an appeal) against the decision to revoke the sole trader’s licence or against the grounds for that revocation.

(ix)

Following the revocation of the sole trader licence, and in accordance with section 26(1) of the 2010 Act, the Department wrote to the partnership on 06 September 2021 to serve notice that it was proposing to revoke that licence under the following grounds:

Section 24(1)(a) as the licence holder no longer appears to satisfy the

requirement to be of good repute under the provisions of section 12A(2)(b) (as determined in accordance with regulations and Article 6 of the 2009 Regulation)

(x)

The Partnership was offered the opportunity to request a public inquiry and given until 27 September 2021 to provide written representations for the Department's consideration. A response was received by the Department on 08 September 2021 which included two points as follows:

Robert Bell did not respond when asked to surrender his licence as he thought it would be revoked if no response was made. He was not aware of the implications this would cause regarding the partnership operator's licence (ON2002503).

Robert Bell has now surrendered his operator's licence and included any paperwork requested (please find enclosed).

(xi)

Upon review of this response the Head of Transport Regulation Unit concluded on 28 September 2021:

Notice has been served, and the operator was invited to make representations and/or request a Pl. Whilst a response was provided it doesn't address the issue raised and offers no mitigation. Instead, it confirms that Mr Bell purposefully sought to ignore/not respond.

The starting point here is that repute has been lost. The burden then lies with the operator to satisfy the Department that loss of that licence would be disproportionate. It is also material to note that those who enter a regulated environment are expected to understand and be familiar with the rules of that environment.

Rather than providing a detailed response, understanding the possible impact of the PTR, the operator has provided what I consider the be a response that justifies the original finding (in that Mr Bell sought to ignore the PTR) and continues to bury the head in the sand as to the issues.

Section 24(1 )(a) of the 2010 Act states that the Department shall direct that a standard licence is revoked if at any time it appears to the Department that the licence holder no longer satisfies the requirements of section 12A(2), which includes the requirement to be of good repute. The emphasis above it my own.

(xii)

The Department wrote to the partnership on 29 September 2021 notifying the operator that the licence would be revoked from 27 October 2021. An appeal against this decision was then received on 21 October 2021. The appeal was given the Upper Tribunal reference UA-2021-000275-NT.

(xiii)

Included with the Notice of Appeal was an application for a stay of the decision of the Head of the TRU. On 25 October 2021 the application for a stay was granted by the Head of the TRU.