Case No. UKUT-00204-(AAC)

12. The OTC, in correspondence it sent to the appellant, sought evidence of available funds of at least £3,100, initially for a 28-day period, and then for the whole of November 2021. That figure was derived from a formula contained within the applicable legal provisions relating to the financial standing requirement which has to be met by an applicant for a standard licence. This appellant, of course, was seeking a restricted licence.13. The claimant contends that he did provide evidence of available funds through the bank statement for the account in his own name, for the period from 9 June 2021 to 2 July 2021. Whilst it is true that the statement revealed a large debit balance throughout that period, it is right to say that there was never a point where the gap between the debit balance and the overdraft facility was less than £3,100. So, it might be said that the statement demonstrated the availability of the required sum for the limited period it covered. But the period covered, as the OTC had pointed out in its correspondence to the appellant, did not extend to 28 days. Further and perhaps more importantly, as again the OTC had pointed out in correspondence, the account was in the appellant’s own name and not in the name of the relevant limited company applicant.14. The request for evidence of available financial resources in the sum of £3,100 for a 28-day period was in line with statutory guidance contained in Senior Traffic Commissioner: Statuary Document No 2: Finance. Further, when a licence is sought by a limited company (as here) money in the personal bank account of a director is not “available” because it is not money which belongs to the company. Such was made clear in (T/2013/77 Hughes Bros Construction ltd). The principle was applied with respect to restricted licences in T/2019/76 Armthorpe Skips Ltd. Further, if there were any doubt as to whether the principle extended to restricted licences the matter was put beyond doubt in T/2021/51 Belistore Limited. Quite simply, the bank statements covering the period from 9 June 2021 to 2 July 2021 did not assist the appellant at all because they were not in the company name. The TC was clearly entitled to proceed on that basis.15. There is then the statement covering the period from 1 July 2021 to 26 July 2021 referred to above. That statement revealed a balance below the required amount for most of the period it covered and did not exceed it until a single payment of £2,500 made on 26 July 2021. It did not cover the 28-day period which the TC had asked for. For those reasons the TC was entitled to disregard that bank statement, as he obviously did, as evidence of available funds notwithstanding that it was, unlike the first statement, in the name of the relevant limited company.16. There is then the bank statement for November 2021. The TC had made a simple and straightforward request of the appellant which was for evidence of available funds of £3,100 or more throughout the whole of November 2021. Against that background it is very surprising that there was withdrawal of £3,000 on 29 November 2021, thereby reducing the credit balance from £3,126 to £126 shortly prior to the end of that month. The reason for that, on the face it, rather puzzling withdrawal has not been provided in the grounds of appeal and does not appear to have been provided to the TC prior to his making his decision. 17. Had we been dealing with a standard licence the position would have been entirely straightforward. We say that on the basis that the appellant did not comply with reasonable requests to properly evidence the £3,100 sum required for the periods sought by the TC. However, the “financial standing” requirement is one which applies, as we have already observed, to standard licences but not to restricted licences. What does potentially apply with respect to restricted licences is the test set out in Section 13D of the Act (see above). But it is necessary, first of all, for the TC to decide, in his or her discretion, to apply that provision. The different nature of the requirements for financial standing and sufficiency of financial resources has been emphasised by the Upper Tribunal in NT/2015/15 Peter Martin Haughey and T/2012/46 Pradeep Kumar Sharma t/a RS Fruitstore.18. In this case the decision letter of 12 December 2021, whilst making it clear that the TC had applied Section 13D of the Act, did not make it clear that discretion to apply it had been exercised and did not explain why such discretion had been exercised. In our view it should have done. But we do accept, in this case, that the TC did consciously exercise discretion given the content of the email referred to above and given the specific reference to the provision in the decision letter. He clearly took the view that, whilst it will not necessarily follow in all cases, it would be right to require the appellant to properly evidence over a reasonable period the financial resources of a level equating to that which would have been required of him under the financial standing test applicable to those seeking or holding standard licences.19. In the above circumstances, whilst we do think more by way of explanation as to the TC’s reasoning could usefully have been provided, the decision was not made in error of law nor was it otherwise plainly wrong. The consequence of that is that this appeal must fail. However, we see no reason on the material before us as to why a fresh and better evidenced application for a restricted licence might not succeed. But, of course, that is not a matter for us.