Case No. UKUT-6-(AAC)

17.The TC had asked for a transcript of the evidence to be prepared. However, she was informed that the recording equipment had malfunctioned during the hearing and a transcript could not be obtained. She therefore relied on her notes and the notes of her clerk in writing her decision2. She also took account of all of the documentation submitted by the appellant in reaching her decision3.18.The TC noted that the appellant had an adverse history in operator licensing. In 2008, the former TC had found him to have behaved dishonestly and to have been involved in deliberate obfuscation during a DVSA investigation. She referred to previous comments by the former TC in her 2008 decision :-“…On the negative side there is the breach of the licence undertakings in relation to drivers’ hours and tachograph charts and I regard these as extremely serious. There is the lying to both myself and to the Traffic Examiners. There are the deliberate ‘misunderstandings’ and failing to co-operate with the Examiners. I am in no doubt that the failure to supply the tachograph records was to obscure drivers’ hours offences…”4“…He has shown himself to be an unreformed character who cannot be trusted by me to operate compliantly within my jurisdiction…I have put into the balance the whole experience of his since I granted him the licence in 2003 and gave him the chance to operate compliantly which he did not. He simply cannot be trusted to be a straightforward compliant operator.”519.The TC referred to the findings of the Deputy Traffic Commissioner (“DTC”) in his decision in 2014, in which he found that the applicant did not have the requisite repute to be granted a licence. He based his findings on an absence of evidence of complaint business operation since the applicant’s disqualification, his involvement in fronting whilst disqualified, and his claims that he had never previously been advised by a traffic Commissioner that he had lost his repute, despite that being clearly stated in the written decision which had been issued6. 20.The TC noted that both the former TC and DTC had made it clear to the appellant that, given his history, he would not be pushing at an open door should he choose to apply for a licence again in the future. However, the last of the previous findings in relation to the appellant’s conduct had been made over seven years ago and the events that had given rise to those findings took place before that. She stated that she had not met the appellant before and she made it clear to him that she was approaching his case with fresh eyes but, given the previous findings, he had a high threshold to meet in establishing repute.21.Having considered the evidence, the TC made the following findings:-26.I found the applicant to be an unconvincing and unreliable witness. He deliberately avoided answering questions where it was clear he considered honest answers may harm his case. He vacillated in his evidence and, as he had clearly done during previous inquiries, sought to rely on historic family and personal difficulties as an excuse for his behaviour. 27.The applicant told me that had been running an Ebay business for many years but it was now less profitable. He claimed that Phoenix Travel was still a live business but that was contradicted by his evidence that it had done ‘not very much’ over the last five years. Despite that, he had applied for, and been given, thousands of pounds of government grant funding to keep it afloat. 28.There was no financial evidence relating to Phoenix Travel before me, nor any information regarding the applications for, or the terms of, the grants that Mr Kilpatrick had applied for trading under that name. I am unable, therefore, to reach a conclusion as to the propriety of the applicant’s actions in applying for those grants. Nevertheless, on the basis of evidence before me, I am able to find that it is more probable than not that Phoenix Travel had not been operating meaningfully, far less profitably, as a business for some time. 29.Mr Kilpatrick applied for the grants under the trading name of Phoenix Travel, but then created a new trading name under which he proceeded to apply for the bounce back loan. His evidence was that he opened the Royal Bank of Scotland account in the new trading name in June 2020. A few days later he applied for the loan. He was advanced the maximum permitted sum based on his projected turnover for his business. 30.The application form submitted for the bounce back loan runs in the name of ‘J Kilpatrick Coach Hire’. The applicant fully admitted that he had created this new business in the midst of a pandemic when there was virtually no work for coach operators. He could see nothing wrong in so doing. 31.The applicant submitted a number of documents in relation to his application for a bounce back loan following the inquiry. I decided, therefore, to remind myself of the conditions for obtaining a bounce back loan during 2020. 32.At the time of writing, the government guidance in relation to bounce back loans was no longer available on the GOV.uk website. However, I had regard to information in relation to the scheme published by the British Business Bank, the state owned organisation which accredited lenders taking part in it. They describe the bounce back loan scheme (BBLS) thus:“BBLS provided financial support to businesses across the UK that:•were losing revenue, and seeing their cashflow disrupted, as a result of the COVID-19 outbreak•could benefit from £50,000 or less in finance.”The FAQ section of the British Business Bank’s website relating to bounce back states: