Case No. UKUT-00192-(AAC)

21. The Upper Tribunal, in appeals such as this, is not permitted to take into consideration any circumstances which did not exist at the time of the determination which is the subject of the appeal (see paragraph 17 (3) of Schedule 4 to the Transport Act 1985).22. Paragraph 17 (1) of the above Schedule provides “The Upper Tribunal are to have full jurisdiction to hear and determine on all matters (whether of law or of fact) for the purposes of the exercise of any of their functions under an enactment relating to transport”. But in Bradley Fold Travel Limited and Anor v Secretary for State Transport [2012] EWCA Civ 695, the Court of Appeal explained that the then Transport Tribunal (now the Upper Tribunal) is not required to rehear all of the evidence by conducting what would, in effect, be a new first instance hearing. Instead, it has the duty to hear and determine matters of fact and law on the basis of the material which was before the TC but without having the benefit of seeing and hearing from witnesses. The appellant “assumes the burden” of showing that the decision which is the subject of the appeal is wrong. In order to succeed an appellant must show not merely that there are grounds for preferring a different view but that there are objective grounds upon which it ought to be concluded that the different view is the right one. Put another way, the appellant must show that the process of reasoning and the application of the law requires the Upper Tribunal to take a different view.