Neutral Citation Number: [2013] UKUT 033 (AAC)
Appeal No.  T/2012/69
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Nick Denton TRAFFIC COMMISSIONER for the South East and Metropolitan Traffic Area 
Dated 14 September 2012

Before:
H. H. Michael Brodrick, 	Judge of the Upper Tribunal
David Yeomans,		Member of the Upper Tribunal
Andrew Guest,			Member of the Upper Tribunal

Appellant:
TERRY WILLIAM FRIAR t/a TW FRIAR TRANSPORT

	 
Attendances:
For the Appellant: The Appellant was neither present nor represented.

Heard at:	Victory House, 30-34 Kingsway, London
Date of hearing:	18 January 2013
Date of decision:	4 February 2013

DECISION OF THE UPPER TRIBUNAL
IT IS HEREBY ORDERED that this appeal be DISMISSED.

SUBJECT MATTER:-	Miscellaneous, material change in circumstances, failure to      respond to letters.	

CASES REFERRED TO:-  None	

REASONS FOR DECISION

1.	This is an appeal from the decision of the Traffic Commissioner for the South East and Metropolitan Traffic Area to revoke the operator’s licence held by the Appellant.
2.	The factual background to this appeal appears from the documents and the Traffic Commissioner’s decision and is as follows:-
(i)	The Appellant is the holder of a standard goods vehicle operator’s licence.
(ii)	On 26 September 2011 letters were sent, by the Central Licensing Unit, (“CLU”), to all operators and to Transport Managers named on Standard Licences to draw attention to some of the changes that were to be introduced on 4 December 2011 when Regulation (EC) 1071/2009 took effect.  In particular attention was drawn to the changes that related to Transport Managers.  A Guidance Note and a questionnaire were enclosed.  The letter stressed that the information requested in the questionnaire had to be supplied.
(iii)	On 1 March 2012 a reminder was sent by the CLU to all operators and Transport Managers who had not responded to the first letter.
(iv)	In July 2012 details of those who had not by then replied were sent to the office of the relevant Traffic Commissioner, (“OTC”) to enable a final ‘chase up’ letter to be sent.
(v)	On 16 July 2012 such letters were sent by the OTC for the South Eastern and Metropolitan Traffic Area to all operators and Transport Managers who had failed to respond to the earlier letters.  The Appellant was one of the operators who had failed to reply to either of the earlier letters.  The letters sent on 16 July 2012 were sent by recorded delivery and first class post to all known addresses for the operators and Transport Managers concerned.
(vi)	The letter of 16 July 2012 referred to the fact that two previous letters had been sent and that no response had been received to either letter.  It went on to warn that as a result the Traffic Commissioner was considering making a direction to revoke the Appellant’s operator’s licence under Section 26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] on the ground that “you may have ceased operating or have changed address without advising the Traffic Commissioner of an updated contact address”.  The letter explained that the Traffic Commissioner was required to revoke the licence if it appeared to him that the operator no longer satisfied the requirements of s.13A(2) of the 1995 Act, and in particular the requirement to be professionally competent.   In addition it explained that the Traffic Commissioner was also required to revoke the licence if the Transport Manager no longer satisfied the requirement to be professionally competent.  The letter then gave the Appellant the opportunity to make representations by 6 August 2012 and it explained that the Appellant could, by the same date, request a Public Inquiry.  The letter concluded by offering the Appellant a final opportunity to complete the questionnaire by 6 August 2012 or, if he did not have a Transport Manager, to apply for a period of grace in which to appoint one.  Given the importance of the letter the Appellant was advised to send any response by registered post or recorded delivery.
(vii)	The OTC did not receive a reply to this letter.  The Appellant made no request for a Public Inquiry nor was there any application for a period of grace in which to appoint a new Transport Manager.
(viii)	On 14 September 2012 the OTC wrote to the Appellant stating that in the absence of any response to the letter of 16 July 2013 or any request for a Public Inquiry the Traffic Commissioner had revoked his operator’s licence on the grounds set out in the letter of 16 July 2013.
(ix)	The Appellant filed a Notice of Appeal against this decision on 2 November 2012, having been given permission to appeal out of time.  The main ground of appeal was that a Transport Manager was put forward, contrary to what had been said in the letter of 16 July 2012.
3.	The appeal was listed for hearing at 10.30 am on 18 January 2013.  By the time that the case was reached, at the end of the list, the Appellant was not present, nor was he represented.  The Tribunal staff confirmed that no explanation had been given for the Appellant’s absence nor had there been any application for an adjournment.  In those circumstances the Tribunal decided to hear and determine the appeal in the Appellant’s absence.
4.	We have set out, in a little detail, the steps taken to draw attention to the changes made by Regulation 1071/2009 and in particular the changes relating to Transport Managers.  We have done this because we are anxious to stress that we consider that the changes are significant and that the steps taken to bring them to the attention of operators are appropriate and proportionate.
5.	The bald statement in the Notice of Appeal that a nominated Transport Manager was put forward is wholly unsupported by any additional information.  We do not know the name of the person concerned.  We do not know when the person was put forward and we have not been provided with a completed questionnaire.  Even if we had been given all this information it would not necessarily have assisted the Appellant.  The Tribunal is not permitted to take into account any circumstances which did not exist at the date of the decision which is the subject of the appeal, (see Paragraph 17(3) of Schedule 4 to the Transport Act 1985 as amended).  If the Appellant only took action after the licence had been revoked we are not permitted to take those steps into account.  On the other hand if the Appellant took action earlier he could and should have informed the Traffic Commissioner which means that any application to put fresh evidence before the Tribunal will fail.
6.	The main problem in this case was that the Appellant failed to answer any of the letters, which were sent to the address or addresses provided to the OTC.  The Tribunal has stressed on many occasions that it is the responsibility of operators to provide the Traffic Commissioner with an address or addresses at which they can rely on receiving correspondence.  The last undertaking, set out at Section 16 on the application for an operator’s licence, and recorded in the licence is that the operator: “will ensure that the traffic commissioner is notified within 28 days of any other changes”.  While we accept that a change of address is not one of the specific examples set out we are quite satisfied that it is one of the matters covered by this undertaking.  The Notice of Appeal gives a different address for the Appellant to that to which the letter of 14 September 2012 was sent so it is possible that the Appellant changed his address without complying with the undertaking to notify the Traffic Commissioner.
7.	The Tribunal has also stressed, on many occasions, that it is the responsibility of operators to reply, in a timely fashion, to any letter from, amongst others, the Traffic Commissioner, the OTC or the CLU.  Failure to reply is likely to lead the Traffic Commissioner to suspect that there has been a material change in circumstances, for example an unauthorised change in operating centre or a change in correspondence address which has not been notified or that the operator has ceased to operate.  Persistent failure to reply to letters will drive the Traffic Commissioner to one or more of those conclusions.  In the present case, given the nature of the correspondence, persistent failure to reply drove the Traffic Commissioner to the conclusion, amongst others, that the Appellant was no longer professionally competent.  Such a finding meant that the Traffic Commissioner had no option but to revoke the licence.  In our view the Traffic Commissioner was correct in concluding that the licence had to be revoked on the other grounds as well.
8.	It is against this background that we have to consider whether or not the Traffic Commissioner was plainly wrong.  In our view the persistent failure of the Appellant to reply to any of the letters, which obviously dealt with something going to the heart of operator licensing, left the Traffic Commissioner with no option but to revoke this licence.
9.	Since the decision to revoke the licence was plainly right the appeal must be dismissed.  If the Appellant wishes to continue to operate vehicles of more than 3.5 tonnes he must apply for a new licence and satisfy the Traffic Commissioner, amongst other things: (i) that he has an address at which he can rely on receiving letters, (ii) that he can be relied on to answer letters and (iii) that the requirement to be professionally competent is satisfied.

His Hon. Michael Brodrick, Judge of the Upper Tribunal, 
Principal Judge for Traffic Commissioner Appeals, President of the Transport Tribunal.
4 February 2013