[2024] UKUT 337 (AAC)

The Traffic Commissioner did not refuse the Appellant’s application for an operator’s licence because it had failed to provide financial evidence covering a period of at least three months. The Commissioner’s decision letter indicated that evidence covering a period of 28 days would have been acceptable (if supplied in the correct form).

The Traffic Commissioner refused the Appellant’s application for an operator’s licence because the Commissioner was not satisfied that the requirement in section 13D of the 1995 Act was met. This was for two evidential reasons. Firstly, the financial evidence initially supplied was rejected because, as a screenshot, it was not in an acceptable form. Secondly, the financial evidence subsequently provided was inadequate not in form but in substance. The bank statement provided to the Office of the Traffic Commissioner on 18 February 2023 related to a period of only nine days.

The Traffic Commissioner did not err in law or fact in rejecting the Appellant’s initial ‘screenshot’ financial evidence. Where information is to be given to a Commissioner on an application for an operator’s licence, section 8(6) of the 1995 Act requires it to be given in such form as the Commissioner may require. The acceptable forms of financial evidence were set out clearly in the Senior Traffic Commissioner’s Statutory Document No.2 – Finance. The Appellant’s financial evidence was not in an acceptable form, as the Appellant was informed by staff of the Office of the Traffic Commissioner, and the Traffic Commissioner lawfully determined that it could not be relied on by the Appellant to establish that it had sufficient financial resources for the purposes of section 13D of the 1995 Act.

In relation to the Traffic Commissioner’s second reason – the period to which the Appellant’s financial evidence (bank statement) related – there is no factual dispute. The Appellant accepts that the bank statements supplied did not cover a period of at least 28 days. This means that the Appellant can only succeed if the Traffic Commissioner, by requiring financial evidence covering a period of at least 28 days, made an error on a point of law.

The Commissioner’s approach was consistent with that set out in Statutory Document No. 2. Paragraph 48 of the Document directs that “original statements must be supplied for the past 28 days”. The present Traffic Commissioner was required by section 1(2) of the 1995 Act to ‘act under’ the Senior Traffic Commissioner’s directions. The Upper Tribunal is not required to act under the Senior Traffic Commissioner’s general directions, but it is required to respect the status accorded by Parliament to the Senior Traffic Commissioner’s general directions. This means that, where a Traffic Commissioner determines a matter in conformity with the Senior Traffic Commissioner’s general directions, it is not open to the Upper Tribunal on appeal to hold that the Commissioner’s determination involved an error on a point of law unless the Senior Traffic Commissioner’s directions were themselves unlawful. Any other approach would undermine Parliament’s intention for Traffic Commissioners to act under general directions given by the Senior Traffic Commissioner.

Statutory Document No.2 embodies the Senior Traffic Commissioner’s judgement that, generally, a financial regulatory requirement will not be considered satisfied by an applicant for an operator’s licence unless it can be demonstrated, by reference to an acceptable form of evidence, that the required amount of finance has been available for at least 28 days. The Senior Traffic Commissioner clearly thinks that a certain degree of proven financial stability is necessary in order to be confident that an applicant for an operator’s licence will achieve the relevant regulatory ends (the purpose for which a certain amount of finance must be available), which, in a case such as the present, is the provision by an operator of facilities and arrangements to maintain its vehicles in a fit and serviceable condition. That view is not irrational; in fact, it is the opposite of irrational. Given the vicissitudes of life (and vehicles), it cannot be said with any confidence that effective facilities and arrangements for vehicle maintenance will be secured unless the operator enjoys a certain degree of financial stability. Statutory Document No.2’s direction for financial evidence to cover at least 28 days is not irrational, using that term in its well-established legal sense (see Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223).

It follows from the above that, in following Statutory Document No.2 and requiring the Appellant to provide at least 28 days of financial evidence in an acceptable form, the present Commissioner’s decision involved no error on a point of law.

For the above reasons, and despite the positive impression made on us by Mr Morgan at the hearing, we dismiss this appeal.

Finally, the panel, in particular the judge, apologise for the delay in giving this decision. Initially, due to an administrative oversight this case was not marked on the Upper Tribunal’s case management system as ready for decision. Subsequently, the judge was absent from duties, and then on limited duties, while recovering from serious injuries sustained in an accident. We hope that Mr Morgan has not found the wait for this decision too frustrating.