[2024] UKUT 240 (AAC)

Following the removal of Mr Noon on 1March, the OTC sent letters referring to the lack of a Transport Manager to all addresses associated with the operator. These were endorsed as “sent by Recorded delivery and email”. The letters were also sent through the VOL. On 20 March Mr Stafford emailed the OTC (using the address by which the VOL system issues notifications that a document is awaiting reading) saying that he had received the recorded delivery letter a couple of days before and that neither he nor Mr Noon had removed the latter, alluding to his data having been stolen from Twitter.

During the period March - early June 2023, Mr Stafford engaged with a Ms Wadsworth of the OTC. She was trying to obtain a completed Form TM1, needed to allow consideration of whether Mr Noon could be re-approved as transport manager. On 31 March she sent a letter by email (to Mr Bowers) and by post. It was not sent by VOL. On 20 April Ms Wadsworth sent a further letter, this time using only VOL, inviting the operator to provide a TM1 application to re-nominate Mr Noon. After some delays which do not need setting out here, a completed Form TM1 was lodged on 6 June, whereupon Ms Wadsworth emailed Mr Stafford to confirm receipt and to explain that the case was now being passed to a different section.

On 7 June, Mr Blaza of that section wrote asking for further particulars of how Mr Noon would perform his duties, given his other commitments. The OTC did not receive a reply. There is no suggestion that this letter was sent by any means apart from VOL. On 3 July Mr Blaza wrote again in similar terms, seeking a reply by 10 July, failing which the matter would be referred to the Traffic Commissioner (“TC”). Again, there is no suggestion that the letter was sent otherwise than through VOL. On 11 July a hard copy of the letter was generated by the VOL system and posted to the operator, by second class post. On 13 July the matter was indeed referred to the DTC, who on 14 July took the decision under appeal. On the same day, Mr Stafford received through the post the hard copy of the letter dated 3 July. It is evident that by the time it was posted and even more so by the time he received it, the deadline in the letter of 3 July had already passed. On Saturday 15 July Mr Stafford emailed Mr Blaza pointing out that he had only just received the letter and that the deadline for reply had passed; he had never received the letter of 7 June; but the operator would now reply. The letter recording the DTC’s decision was sent to him on 17 July by recorded delivery and email and the same day he phoned Mr Blaza to explain what had happened. He claimed that he had by telephone requested the licence be switched from receiving mail electronically to receiving mail via post only, but this had not been actioned. Mr Blaza had said he would see if the decision could be withdrawn. However, when the matter was referred to the TC, he took the view that there was no power to do so and that the operator would have to appeal.