Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 231 (AAC)

Fecha: 20-May-2025

Relevant background law

Relevant background law

11.

Section 17, as drafted, has two relevant qualifications to s17(1), the provision requiring the TC to revoke a licence in certain circumstances:

section 17(1A) provides that, before revoking a standard licence under s17(1), the TC may serve on the holder a notice setting a time limit, in accordance with Article 13.1 of the “2009 Regulation”, for the holder to rectify the situation. Section 17(1B) then states that, if the holder rectifies the situation within the time limit set under s17(1A), the TC must not revoke the licence

(“2009 regulation” means Regulation (EC) No 1071/2009 of the European Parliament and of the Council of 21 October 2009 – part of retained EU law);

section 17(4) provides that the TC shall not take any action under s17(1) in respect of any licence without first holding a public inquiry if the holder of the licence requests that a public inquiry be held.

12.

Article 13.1 of the 2009 regulation reads as follows:

Where a competent authority establishes that an undertaking runs the risk of no longer fulfilling the requirements laid down in Article 3, it shall notify the undertaking thereof. Where a competent authority establishes that one or more of those requirements is no longer satisfied, it may set one of the following time limits for the undertaking to rectify the situation …(c) a time limit not exceeding 6 months where the requirement of financial standing is not satisfied, in order to demonstrate that the requirement will again be satisfied on a permanent basis.

(the Article 3 requirements include that of financial standing)

13.

Article 13.3 of the 2009 regulation reads as follows:

If the competent authority establishes that the undertaking no longer satisfies one or more of the requirements laid down in Article 3, it shall suspend or withdraw the authorisation to engage in the occupation of road transport operator within the time limits referred to in paragraph 1 of this Article.

14.

Furthermore, regulation 9(1)(a) of the Public Service Vehicles (Operators' Licences) Regulations 1995 provides that, before exercising any of its powers under s17(1), the TC who granted the licence shall give notice to the licence holder; regulation 9(2) sets out the things the notice must state:

that the TC is considering such action;

the grounds on which that consideration is based;

that within 14 days of such notice the holder may make written representations to him with respect to the action or actions being considered;

either—

that the TC proposes to hold an inquiry in relation to the action being considered and the date (being a date not less than 14 days from the notice) on which that inquiry will be held, or

ii.

that the TC does not propose to hold an inquiry in relation to that action unless the holder, within 14 days of the notice, in writing requests him to do so.

15.

The case of Egertons Recovery Group Ltd [2022] UKUT 141 (AAC) concerned a very similar, parallel regime for heavy goods vehicles; in particular, [39-41 and 45] in that case made clear that

revocation of the licence is compulsory where the operator no longer satisfies the relevant statutory requirements; but

before revocation can be ordered, the relevant statutory notice “must be sent, stating the grounds upon which the TC is considering an order of revocation and inviting the operator to make representations in respect of those grounds which must be received by the OTC within 21 days of the notice” – in this case, the relevant notice is that under regulation 9(1)(a) (which gives 14 rather than 21 days); furthermore,

there is a right of an operator to request a public inquiry when a TC is considering an order of revocation;

it is for the operator to determine within the period allowed whether to request a public inquiry or make representations and/or request a “period of grace”;

a “period of grace” is an admission on the part of the operator that they no longer satisfy one or more of the statutory requirements;

Article 13.1 envisages a two-step process and the first step – when the TC establishes that the operator “runs the risk” of no longer fulfilling the requirements laid down in Article 3 – is the relevant statutory notice; the second step involves the TC setting a time limit (or “period of grace”) – and that “will be separately conveyed at a later date” to the statutory notice;

a finding that the operator no longer meets one of the requirements is necessary before a “period of grace” can be considered;

it is for the operator to provide to the TC, the information necessary for the TC to be satisfied that the operator has rectified the position within the “period of grace”; and

once a “period of grace” comes to an end, the operator has no further opportunity either to make representations or to request a public inquiry.

16.

At [42] of Egertons, the Upper Tribunal did not accept, on the wording of the parallel provisions for heavy good vehicles, that a “period of grace” could only be granted in a statutory notice; such an interpretation would misinterpret Article 13; the Upper Tribunal concluded that paragraph as follows:

Whilst there may be cases in which the TC has been given notice of a material change along with representations and a request for a [“period of grace”] prior to the [relevant statutory] notice being issued, the notice cannot be dispensed with as the contents ensure that the operator is aware of all of the options available to them (including the right to request a public inquiry). This is particularly important when the request for a [“period of grace”] amounts to an admission that one of the mandatory requirements is no longer satisfied and that as a consequence, without a [“period of grace”] being granted, the licence shall be revoked. We find that it is almost inevitable that the grant of a [“period of grace”] will be subsequent to the [relevant statutory] notice.