[2025] UKUT 073 (AAC)

The Appellant does not, in terms, argue that the Traffic Commissioner’s regulatory decisions had no effect because, had his prior surrender request been dealt with lawfully, there would have been no operator’s licence to revoke. However, the Appellant is clearly aggrieved by the Commissioner’s refusal to accept his surrender request, and the existence of an operator’s licence at the date of the Commissioner’s decisions raises jurisdictional issues for the Upper Tribunal since the existence of a licence is an objective condition precedent to the exercise of the Commissioner’s powers and, in turn, those of the Upper Tribunal. This is why we decide to address, of our own volition, the question whether the Commissioner’s response to the Appellant’s surrender request affected the validity of her regulatory decisions (see Eshugbayi Eleko v Officer Administering the Government of Nigeria and another [1931] All ER Rep 44).

The first question is whether the Upper Tribunal’s formal jurisdiction (area of competence or power) extends to appeals against a Traffic Commissioner’s refusal to accept a licence holder’s request to terminate its licence. Such decisions are taken under section 16(4) of the 1995 Act, but section 16(4) is not mentioned in the list of Commissioner decisions that may be appealed to the Upper Tribunal under section 37. To date, that absence does not appear to have troubled the Upper Tribunal (for example, see Cornwall Busways Ltd T 2015/10; [2015] UKUT 0314 (AAC)). However, those decisions were given without analysis of the nature of the Upper Tribunal’s jurisdiction, if any, in relation to a Commissioner’s decision to refuse an operator’s request for termination of its licence.

The Upper Tribunal is a creature of statute and cannot therefore arrogate to itself power to decide appeals against decisions in respect of which the 1995 Act confers no right of appeal. This includes a Traffic Commissioner’s decision to refuse to accept an operator’s request to terminate its licence. Had Parliament intended to confer a right of appeal against such decisions, it would have said so in section 37. Nevertheless, many of the Commissioner decisions that do attract a right of appeal are predicated on the existence of an operator’s licence. Self-evidently, a Commissioner cannot revoke an operator’s licence that does not exist. It is by this indirect route that the Upper Tribunal might be required to address a Commissioner’s response to an operator’s request for termination of its operator’s licence.

In the unlikely event that a Traffic Commissioner overlooked that an operator’s licence had been terminated, when making a licence revocation decision or an associated disqualification order under the 1995 Act, the Upper Tribunal would be bound to hold that the revocation direction and any disqualification order were nullities. But are the Upper Tribunal’s powers any wider than that? We incline to the view that they are, but do not express ourselves with any more certainty than that because we do not have the benefit of any legal submissions on the issue.

If a Traffic Commissioner’s refusal of a termination request contravened established principles of administrative law, such that the refusal would be quashed if challenged in judicial review proceedings, we incline to the view that the Upper Tribunal should, where the issue arises (a) treat the refusal as a nullity and (b) if the only reasonable response to the termination request would have been to accept it, treat any subsequent regulatory decisions, whose validity was dependent on the existence of an operator’s licence when the decisions were taken, as nullities. This approach accords the Upper Tribunal’s statutory responsibility to oversee the lawfulness of those Commissioner decisions which do attract a right of appeal. For instance, assume a case where the Upper Tribunal is satisfied that it was not open to the Commissioner to find, at the date of a surrender request, that a direction under section 26 or 27 of the 1995 Act was under consideration (that being the only ground on which section 16 permits refusal of a termination/surrender request). In our view, it would be consistent with the Upper Tribunal’s statutory role for it to hold, on appeal, that any subsequent regulatory decisions, taken on the assumption that an operator’s licence still existed, were invalid and of no effect.