Case No. UKUT-6-(AAC)

34.Regarding ground 1, it is not uncommon for TCs and judges to write decisions from their memory, notes and documentation submitted for the hearing in question. In any event, the appellant, did not refer to any factual inaccuracies in the TC’s decision that might be due to a lapse of memory. His criticisms were mainly about findings with which he disagreed. We are therefore unable to find that the TC’s decision is plainly wrong because she did not have a transcript of the evidence given at the PI.35.We are unable to uphold ground 2. The TC allowed the appellant additional time to produce the BBLS loan application form for J Kilpatrick Coach Hire and related documentation. That documentation clearly shows that the scheme was intended for businesses that were in existence on 1 March 2020 and whose business had been adversely affected by the Covid restrictions. The appellant accepted that the business was not in existence at that date. He produced no evidence to show that the bank had advised him that there was any other scheme or exceptions to what was stated on the BBLS application form for which a new business created after that date would be eligible to apply for such a loan and for which the bank would be empowered to approve and grant such a loan.36.The BBLS documentation and the publicly available information about the scheme show that it was based on trust. An applicant had to self-declare that it met the criteria to be granted a loan. The bank took what was on the form at face value without requiring supporting vouching. It is for that reason that no weight can be attached to the emails from the appellant’s bank. The bank is simply taking the form at face value and, on the basis that what is stated is true and accurate, grants the loan if the answers show that the applicant meets the eligibility criteria. The email referred to by the appellant stated no more than this. It did not prove that a business that was not in existence on 1 March 2020 was eligible for a BBLS loan, or that the application had been made honestly.37.We are unable to find that the TC misunderstood either the BBLS or the emails from the appellant’s bank. On the contrary, we find she was quite correct in her interpretation of the scheme and the documentation before her. She had ample evidence before her on which to base her findings in fact about this issue. We can find no fault with her reasoning or fact finding regarding the BBLS.38.Regarding ground 3, as was noted by the TC in paragraph 42 of her decision, operator licensing is based on trust. In considering the question of good repute, the TC has to ask herself, “How likely is it that this operator will, in future, operate in compliance with the operator’s licensing regime?”8 In other words, can he be trusted? The TC, in considering the grant of a licence and whether the applicant is of good repute must take into account “all the relevant evidence” see paragraph 6 and 7 above. The relevant evidence includes his history in this regulatory regime. We therefore can find no fault in the TC’s approach in having regard to the appellant’s history, this was relevant evidence she was bound to consider..39.History might pale into insignificance if it were balanced against a recent substantial period demonstrating good repute and that the applicant for a licence can be trusted.40.The appellant submitted that since the revocation of his last licence, which was in 2008, he had been of good repute, and that should have been weighed in the balance against his history. Contrary to the assertions of the appellant, since 2008 he has been found to be involved in fronting (2011) and of driver’s hours infringements, resulting in his vocational driving entitlement being suspended for four months9. In 2014 the DTC refused to grant him an operator’s licence on the grounds that he was not of good repute based partly on his adverse history and the fact that he had denied he had ever been found not to be of good repute, despite this having been imparted to him in previous decisions10. In his written grounds of appeal to the Upper Tribunal he stated that he had no recollection of having lost his repute or having been disqualified for 5 years. However, he withdrew these assertions at the hearing before the Upper Tribunal.1141.The appellant’s application for the BBLS loan is also highly relevant evidence that the TC was bound to consider. The BBLS is a useful indicator as to how the appellant might operate within the operator licensing regulatory regime because it, too, was based on trust and self-certification. The appellant had been found to have flouted the conditions of the BBLS. 42.The TC found the appellant to be an unconvincing and unreliable witness. She found that he had given inaccurate information to the bank to obtain the BBLS loan by stating that J Kilpatrick Coach Hire had been in existence on 1 March 2020, a fact that was irrefutable on the evidence available. She found his claims that he believed he had done nothing wrong in applying for the loan to be wholly incredible. The view of a judge at first instance as to where credibility lies, is entitled to great weight12. The judge at first instance has had the benefit of seeing and hearing the witness. An appellate court should not disturb a judgment of fact unless satisfied that it is unsound. That applies equally to the TC’s opinion in this case.Courts have recognised the benefit of seeing and hearing a witness giving evidence. This is in the context of limiting the extent to which an appellate court will interfere, even in an appeal on the facts, with a conclusion reached by a judge who took the oral evidence. The significance of these factors reflects the fact that a bare transcript of the evidence and the judge’s judgement setting out the findings of fact cannot convey every nuance of the evidence as given in court. (Jacobs, Tribunal Practice and Procedure, 5th ed, page 467.)We have no reason to disturb or disagree with the TC’s finding on the appellant’s reliability and credibility. She has explained her impression of the appellant in giving his evidence (paragraph 26) and his motivation of personal gain in opening a new bank account in the name of a new business (paragraph 40). She has analysed the BBLS and made clear findings in fact that it was aimed at businesses already in existence on 1 March 2020 and that the appellant’s application presented false information to the bank in order to obtain the BBLS loan. We can find no fault either with her reasoning or her fact finding on these issues.43.Having made these findings, the TC balanced the positives in the appellant’s case against the negatives and found that the positives were outweighed, largely based on his behaviour in relation to the BBLS loan.44.We are therefore unable to accept the appellant’s submission that the TC attached too much weight to his history. As the TC found, his more recent conduct regarding the loan was consistent with his past behaviour and that he had shown himself to be an unreformed character who could not be trusted to operate compliantly within the regulatory regime.45.We find no merit in the appellant’s fourth ground of appeal. The TC allowed the appellant a further 14 days to produce any additional information he wished to present to show that his application for the BBLS loan had been made in good faith and that J Kilpatrick Coach Hire met the eligibility criteria. He presented his evidence and it was considered by the TC. It is obvious from her decision and findings that she was in no doubt about the purpose of the scheme and the eligibility criteria. She therefore had no reason to recall the PI and we can find no fault in her not doing so.46.We see no reason to disturb the TC’s findings in fact or her reasoning in reaching her conclusion that the appellant did not meet the requirement of good repute in terms of section 14ZA(2)(b) of the 1981 Act. There are no grounds for holding that the TC’s decision on this issue was plainly wrong.Decision47.The decision of the TC dated 22 December 2021 is upheld. The appeal is dismissed.