Decision for Julia Oliver t/a Nancy Black Plant Hire (OF2014191)
Published 8 October 2020
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In the Eastern Traffic Area.
Confirmation of the Traffic Commissioner’s decision.
1. Background
Julia Oliver, trading as Nancy Black Plant Hire, holds a Restricted Goods Vehicle Operator’s Licence authorising 2 vehicles and 2 trailers, which commenced on 22 August 2019. The licence was gained on the basis of a closing balance and an undertaking for a further finance review.
There is one Operating Centre at Nancy Black Plant Hire Recycling Centre, Pitsea Hall Lane, Pitsea, Basildon SS16 4UH. The declared maintenance contractor is DBVS Management, which is said to inspect vehicles and trailers at 6 weekly intervals.
2. Hearing
The Hearing was heard today, 23rd July 2020 in Tribunal Room 1 of the Office of the Traffic Commissioner, Cambridge. The operator failed to appear. I waited until 14:30 to commence, in case of delay or other communication.
3. Issues
The Public Inquiry was called for me to consider whether there were grounds for me to intervene in respect of this licence and specifically by reference to the following sections of the Goods Vehicle (Licensing of Operators) Act 1995:
- 26(1)(b) – failure to notify of events affecting the availability of finance
- 26(1)(f) – undertakings (specifically relating to finance)
- 26(1)(h) – material change with regards to fitness and finance
The Operator was first put on notice of these issues in correspondence dated 19 March 2020 (page 56).
4. Summary of Evidence
As is evident from the correspondence within my bundle, in order to obtain grant of this licence, the operator offered a closing balance as a result of a substantial recent deposit and an undertaking to show the required level of finance in order to support the maintenance of vehicles in the usual way (as fully explained in the Senior Traffic Commissioner’s Statutory Document on Finance), by reference to a three month average. In this case, for the months of September, October and November 2019. That financial evidence was to be provided by 31 December 2019.
On 23 December 2019, the Operator submitted bank statements covering the period of 2 September 2019 to 25 November 2019, but the average did not meet the required sum. Reference was made to monies owed to the business, but these could not be taken into account. The closing balance did exceed the required sum, but only as a result of a recent deposit.
A request for an explanation was sent. The Operator’s response referred to the sale of items and potential support from a family member.
The Operator was put on notice of the potentially serious consequences in correspondence dated 19 February 2020 (page 35 of the bundle). The response again referred monies which were owed but not in the possession of the operator. She indicated that she was content to attend a Public Inquiry.
During the period of the lock down correspondence was sent by OTC in an effort to assist the Operator with suggestions of education and a reduction in authority but no response was received.
In response to the notification of the Public Inquiry the Operator contacted the OTC by email on 10 July 2020, suggesting that she had surrendered the Operator’s Licence. She attached two screenshots suggesting she had attempted surrender. However, there is no evidence that these forms were completed or lodged. This was communicated to the Operator by email of the same date. She was asked if she had completed an application to surrender (SUR1) and to explain what had happened to the licence document and vehicle discs. To date there has been no response. There is no proof that her surrender emails were ever sent. Her cover referred to financial difficulty but did not address the other matters at issue.
The Operator was asked to provide up to date bank statements and other evidence by 16 July 2020, but nothing has been received.
5. Determination
The matters at issue predate the pandemic restrictions. Advice was communicated to the operator as to the potential consequences of a failure to meet the undertaking and to provide acceptable evidence as to the availability of finance. Last minute communications refer to a potential surrender. The operator failed to provide clarification or to return the relevant documentation so I have been unable to accept surrender. There has been a resultant waste of tribunal time.
I have already referred to Statutory Document No. 2, which provides a very full explanation of the law and its application. Put simply, an operator may show the availability of financial resources or capital and reserves through money in the bank, which is capable of being used, (i.e. it is not already needed for the payment of ordinary business debts such as a VAT or tax bill) or an overdraft, in the sense that there is a balance undrawn before the limit is reached or through money which is easy to access or assets from which money is easy to obtain. This is not an exhaustive list
To meet the legal test, the money has to be available to the Operator. “Available” is defined as: “capable of being used, at one’s disposal, within one’s reach, obtainable or easy to get”. The leading appeal case of 1992/D41 J J Adam (Haulage) poses three questions:
- how much money can the operator find if the need arises?
- how quickly can he find it?
- where will it come from?
In order to discharge the obligation on the operator, financial resources must be at the disposal of or within the reach of the operator so, if the operator must first ask someone else to transfer the money, then it is not available. This was explained by the Upper Tribunal in 2011/036 LWB Ltd.
In applying the law, I must conclude that there has been a material change, as I am unable to satisfy myself as to the availability of the required sum. There was an undertaking which was breached but, noting the absence of enforcement or annual test history to consider, I do not remove fitness. Her conduct has tarnished that.
The Operator’s Licence will be revoked under sections 26(1)(f) and (h). As there are currently no vehicles specified, although 4 have been added and removed since grant, the revocation will take effect from 23:45 tonight. I make no order for disqualification but do record that any future application will have to be referred to a Traffic Commissioner.
RT/TC/23/7/20