Neutral Citation Number: [2014] UKUT 0155 (AAC)		Appeal No.  T/2014/6
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Kevin Rooney, Traffic Commissioner for the 
North East of England Traffic Area dated 27 November 2013

Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
Michael Farmer, Member of the Upper Tribunal

Appellant:

PAUL ELLIS trading as
ALBERT HAIGH & SONS

Attendances:
For the Appellant: In person  

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ
Date of hearing: 25 March 2014
Date of decision:   31 March 2014

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED

SUBJECT MATTER:-  Restricted licence; operator imprisoned; whether material change; the correct identification of the operator in correspondence.

CASES REFERRED TO:-  None

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the North East of England Traffic Area made on 27 November 2013 when he revoked the Appellant’s restricted operator’s licence under s.26(1)(h) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”) with immediate effect. 

2.	The factual background appears from the documents and the Traffic Commissioner’s decision letter and is as follows:

(i)	Albert Haigh & Sons Limited is a scrap metal business which is a wholly owned subsidiary of Barrie K Ellis (Huddersfield) Limited.  Paul Ellis is the sole director of both companies and he and his wife are the shareholders.   A restricted operator’s licence is held for one vehicle for use in the scrap metal business.  The Tribunal noted that there was an issue as to who held that licence.
(ii)	On 16 October 2013, Neil Vosper, a VOSA Intelligence Officer, emailed the Office of the Traffic Commissioner (“OTC”) attaching an article which had appeared in the West Yorkshire News concerning the conviction of Paul Ellis, for attempted handling of stolen goods.  He had been the subject of a “sting” operation by undercover officers and had agreed to purchase 1.2 metric tonnes of BT copper cable.  On 18 September 2013, Mr Ellis was sentenced at Leeds Crown Court to a term of 14 months imprisonment.  
(iii)	On 17 October 2013, Phil Jowitt, Senior Team Leader within the OTC wrote to Mr Ellis.  The letter was addressed to “Mr P Ellis t/a Albert Haigh & Sons Ltd” and informed Mr Ellis that prior to considering the appropriate action to take in the light of his conviction, the Traffic Commissioner (“TC”) invited comments.  The letter informed Mr Ellis that it was likely that a public inquiry would be called to allow the TC to carry out a full investigation. 
(iv)	On 28 October 2013, the Appellant’s son, Joe Ellis responded to the letter by email.  He set out the circumstances in which the Appellant came to be convicted and stated that the company had always operated lawfully and that revocation of the licence would put a massive strain on the company and could lead to its closure.  He informed Mr Jowitt that the maintenance of the vehicle was all in order and that as his father was to be released on 3 January 2014, he enquired as to the possibility of the licence being transferred to his own name or that of an employee.  
(v)	Mr Jowitt replied to the email on 30 October 2013, addressing the letter to “Mr Paul Ellis t/a Albert Haigh & Son Ltd”.  The letter pointed out that as operator’s licences were not transferrable, the TC was proposing to revoke the licence under s.26(1)(h) of the Act as the “director/entity” to whom the licence had been issued was no longer in control of the business due to “current serving a custodial sentence”.  Mr Ellis was given a further opportunity to make representations or to request a public inquiry by 22 November 2013.  If no request for a public inquiry was received, the licence would be revoked.  
(vi)	Paul Ellis replied to the letter by email on 19 November 2013.  He too informed Mr Jowitt that all of the maintenance systems were in place for the vehicle and that he was in contact with the company three or four times a week.  The vehicle covered less than 7,000 miles per year but its loss and the cost of reapplying for a licence was something that the company could ill afford.  He requested that the licence be suspended until January 2014 and he gave an undertaking that the vehicle would not be used in the interim.  He signed himself “Director of Albert Haigh & Son Limited”.
(vii)	On 27 November 2013, the TC wrote to Mr Jowitt in the following terms: “I cannot see how an operator who is in prison for a significant period of time can continue to exert proper control over the operation of vehicles on his licence (our underlining).  A very material change has occurred and I fully agree the licence be revoked”.  The decision letter was addressed on this occasion to “Paul Ellis t/a Albert Haigh & Sons” (without the “Limited”).
(viii)	Upon receipt of Mr Ellis’s notice of appeal, the Upper Tribunal requested the appeal papers.  The OTC responded and described the Appellant as “Barrie K Ellis (Huddersfield) Ltd”.  As a result of the three different licence holder names on the face of the OTC’s correspondence, the Tribunal required a copy of the licence to be provided to it.  That indeed confirmed that “Barrie K Ellis (Huddersfield) Ltd” was the entity named on the operator’s licence.

3.	At the hearing of this appeal, Mr Ellis attended and represented himself.  He was adamant that it was he who held the licence trading as Albert Haigh & Sons, which was the reason for the correspondence being addressed to him directly and in those terms.  He was equally adamant that it was his name on the licence discs and he was at a loss as to why the licence itself was in the name of Barrie K Ellis (Huddersfield) Limited.  

4.	Mr Ellis informed the Tribunal that he had not expected to receive a custodial sentence as a result of his conviction and as a result, he had not taken legal advice as to any steps that should be taken with regard to either the companies or the licence.  He acknowledged that an opportunity had been given to him to ask for a public inquiry before the decision to revoke the licence was made and he did not know why his son had not asked for one (although we note that it was he who responded to the letter offering a public inquiry).

5.	We acknowledged to Mr Ellis that there was clearly some confusion as to who held the relevant licence and we advised him to take the opportunity of a short adjournment to confer with Mr James Backhouse solicitor, who was outside the hearing room.  This he did.  Having taken some trouble to ascertain the correct position, Mr Backhouse on behalf of Mr Ellis informed the Tribunal that having interrogated the licensing system, there appeared to be only one licence in existence and that did not name Mr Ellis as the licence holder.  

6.	Having ascertained the correct position, we advised Mr Ellis that his appeal was bound to fail.  Despite the fact that the OTC was writing to him personally rather than to him as a director of the licence holder, the position was made clear: he as a sole director of the licence holder was in prison at the material time and that in the absence of arrangements being made to replace Mr Ellis as director or a request a public inquiry, it was not unreasonable for the TC to revoke the licence.  Accordingly, this appeal is dismissed.

7.	By way of a footnote, the Tribunal does wish to express its dismay at the failure of the OTC to accurately identify the licence holder at any stage during the correspondence leading up to revocation and to properly address communications to that entity.  

Her Honour Judge J Beech
31 March  2014