Paul Jarvis

An operator’s licence application must be assessed through a full and proper evaluation of good repute. A negative answer to a question about revocation does not, without more, establish dishonest non-disclosure. The decision-maker must consider the wording of the question, the applicant’s related disclosures, and evidence bearing on intention.

Where material information about future compliance or transport arrangements may have been supplied but was not considered, and the previous regulatory history has not been evaluated holistically, refusal may be unsustainable. On an appeal under Transport Act 1985, the Upper Tribunal may set aside the decision and remit it where the available material does not permit substitution of its own decision.

The appellant, a sole-trader goods-vehicle operator, appealed against the Traffic Commissioner’s refusal of his fresh application for a standard national operator’s licence. His former licence had been revoked and he had been disqualified after a public inquiry.

In the new application, he answered “no” to a question asking whether a person named had had an operator’s licence revoked by an EU licensing authority. He nevertheless disclosed the earlier public inquiry, his former licence reference and his disqualification. The Office of the Traffic Commissioner treated the answer, and an asserted failure to supply further explanations, as demonstrating lack of good repute.

The central issue was whether the refusal adequately evaluated dishonest intent and all relevant material bearing on the appellant’s repute and prospective compliance.

1. Appeal allowed. The refusal of the application was set aside and remitted to a different Traffic Commissioner for reconsideration.

2. Under paragraph 17 of Schedule 4 to the Transport Act 1985, the Upper Tribunal has full jurisdiction over law and fact, but its appellate function is not a fresh first-instance rehearing. Applying Bradley Fold Travel Ltd & Anor v Secretary of State for Transport [2010] EWCA Civ 695, the appellant bore the burden of showing that the reasoning and application of law required a different conclusion.

3. The refusal was unsustainable because it did not properly evaluate whether the appellant had acted dishonestly. Technically, his answer that no licence had been revoked by an EU licensing authority was accurate, since the United Kingdom had left the European Union before the revocation. The form’s wording might require updating.

4. More importantly, the appellant had disclosed the linked public inquiry and disqualification. Those disclosures were material indicators against an intention dishonestly to conceal the revocation. The decision letter did not address their significance and therefore failed to evaluate the key issue of dishonest intent when assessing good repute under Goods Vehicles (Licensing of Operators) Act 1995.

5. The appellant also had potentially relevant information concerning measures to improve future compliance and the means by which transport needs had been met following revocation. Whether that material reached the regulator could not be resolved on the evidence, but it had not been considered. The circumstances of the earlier revocation and disqualification might also require consideration in a holistic assessment of repute.

6. Remittal, rather than substitution, was appropriate because the Tribunal lacked sufficient material to make its own licensing decision. The fresh consideration was directed to be undertaken by a different Traffic Commissioner and, unless the application could be granted without one, ought to take place at a public inquiry.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the refusal, and remitted the application for reconsideration.
• Traffic Commissioner for the West Midlands: refused the appellant’s application for a standard national goods-vehicle operator’s licence by letter dated 7 May 2022.