Upper Tribunal Administrative Appeals Chamber

[2023] UKUT 230 (AAC)

Fecha: 25-Jul-2023

Section 1

Although Form UT12 was completed in the name of Mr Mohamud Hassan, it is the appeal of the operator (of which Mr Hassan is a director) and the title of the case is as shown above.

The decision of the Upper Tribunal is to dismiss the appeal.

REASONS FOR DECISION

The operator held a restricted licence under the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”). Following a Public Inquiry held on 16 January 2023, the licence was revoked from 23:45 on 3 March 2023 in consequence of adverse findings under paragraphs (a)(e)(f) and (h) of section 26(1) of the Act, set out below.

The appeal was listed for hearing at 1030 on 25 July 2023 at Field House, London EC4. While the operator’s solicitors had ceased trading a relatively short time beforehand, the notice of hearing had been re-served on the operator direct. As a tube strike had been announced for the hearing date (though it did not in the event proceed) the Upper Tribunal office had emailed to check that the operator would nonetheless be able to attend, receiving by email dated 14 July confirmation that it could.

By 1045 there was no attendance or representation on behalf of the operator. The clerk telephoned the operator and was told that Mr Hassan had gone to hospital. No further detail was forthcoming. When the clerk rang Mr Hassan’s own mobile, it went straight to voicemail. No email has been located from Mr Hassan or others on behalf of the operator alerting the Upper Tribunal to the apparent difficulty and seeking a postponement of the hearing.

The panel was satisfied in view of the email of 14 July that the operator had been notified of the hearing. It considered it was in the interests of justice to proceed with the hearing as:

(a)

there was sufficient written evidence to enable the panel to reach an informed view about the matters in issue; and

(b)

if the operator had wished to be represented but this had been frustrated by Mr Hassan’s need to go to the hospital, it would be open to the operator under rule 43 of the Upper Tribunal’s Rules to apply in writing, within one month of the date of the letter issuing this decision, for it to be set aside and the application would be considered. Such an application should explain why in the operator’s view it would be in the interests of justice for the present decision to be set aside and a further hearing convened.

So far as relevant, section 26(1) provides:

“(1)
Subject to the following provisions of this section and the provisions of section 29, a traffic commissioner may direct that an operator's licence be revoked, suspended or curtailed (within the meaning given in subsection (11) on any of the following grounds—
(a)
in the case of a heavy goods vehicle licence, that a place in the traffic area to which the licence relates has, at a time when it was not specified in the licence as an operating centre of the licence-holder, been used as an operating centre for heavy goods vehicles authorised to be used under the licence;
…
(e)
that the licence-holder made, or procured to be made, for the purposes of—
(i)
his application for the licence,
(ii)
an application for the variation of the licence, or
(iii)
a request for a direction under paragraph 1 or 3 of Schedule 4,
a statement of fact that, whether to his knowledge or not, was false, or a statement of expectation that has not been fulfilled;
(f)
that any undertaking recorded in the licence has not been fulfilled;
(h)
that since the licence was issued or varied there has been a material change in any of the circumstances of the licence-holder that were relevant to the issue or variation of the licence;
…”

The concerns raised by the Traffic Commissioner were centred on:

(a)

operating from an unauthorised operating centre and

(b)

lack of systems, record-keeping and inspection.

It is convenient to deal with each in turn.