[2024] UKUT 353 (AAC)

we accept the proposition that the appointment of an additional director was a material change in the appellant’s circumstances, given that, when the licence was granted, the appellant had a single owner and director (Mr Kumar); this meant that, under s26(1), the TC had the power to revoke the appellant’s licence;

in addition, we consider it likely that it was a condition of the appellant’s licence that it notified the TC of changes to the composition of its board – although the licence was not produced in evidence, this point was not disputed by the appellant, and the panel of the Upper Tribunal hearing this case, through its expertise, is aware that this a standard undertaking in such licences; we also note that paragraph 97 in the current version of senior TC statutory document 5 (Legal Entities) states that changes of directors should be notified to the TC. This amounts to an additional reason why the TC had the power to revoke the appellant’s licence under s26(1);

furthermore, we do not consider it wrong of the TC to take the view that the appellant’s repeated failure to respond to the TC’s request that it update the VOL system to reflect the change in its board composition, indicated a lack of fitness to hold a licence; the TC was entitled to take the view that someone fit to hold a licence would either have updated the VOL system themselves, or would have actively satisfied themselves that the updating had been performed (rather than passively taking the transport manager’s word for it, as the appellant appeared to have done, despite the very serious tone and potential consequences of the TC’s 18 January 2024 letter). There is good authority that licence-holders cannot “put the blame on the transport manager” because it is the licence-holder who is required “to have sufficient knowledge of the regulatory regime to ensure compliance in general” (the quotations are from the decision of the Upper Tribunal in T/2014/24 KA & Z Leonida t/a ETS, paragraph 4);

It follows that the TC was not wrong to consider that one of the conditions of s13A was no longer met; and so he was required by s27 to revoke the licence.

the decision was not made exclusively under s27; it was also made under s26; and that requirement of s27(3)(b) does not apply to decision under s26;

even as regards the TC’s decision under s27, we note that the Supreme Court in A1 Properties (Sunderland) Ltd v Tudor Studios RTM Co Ltd [2024] UKSC 27 recently held that where there is no express statement of the consequences of a failure to comply with a statutory procedural requirement, the correct approach is to infer what consequences Parliament had intended non-compliance to have by looking at (a) the purpose served by the requirement as assessed in the light of a detailed analysis of the statute and (b) the specific facts of the case, having regard to whether any (and what) prejudice might be caused or whether any injustice might arise if the validity of the statutory process was affirmed notwithstanding non-compliance with the requirement. Here, given the evidence purpose of s27(3)(b) to give a licence-holder a reasonable time to make representations, together with the facts that (a) the appellant never responded to the TC’s 18 January 2024 letter, indicating that it would have made no difference if that letter had given 21 days to make representations (as it should have), rather than 15 days; this point is further reinforced by the fact that the appellant’s directors acknowledged that, even at the time of the hearing, they still did not have knowledge of the “log in details” needed to update the VOL system) and (b) we have been able to hear, and consider, the appellant’s representations, as part of these proceedings, and have found them unpersuasive as regards finding that the TC’s decision to revoke the appellant’s licence was wrong, we are confident that Parliament did not intend non-compliance with s27(3)(b), in the circumstances of this case, to have the consequence of invalidating the TC’s decision under s27.