Intended profits were 'mere guesses' with little explanation of how they were arrived at
The decision of Traffic Commissioner Tim Blackmore to refuse an application for a new restricted licence by Rotherham-based by Ghaffar Hussain, trading as GAFFS Minibus Service, on grounds of failing to meet the main occupation rule, without holding a Public Inquiry (PI), has been upheld on appeal.
The Upper Tribunal said that Mr Hussain, of North Crescent, Rotherham, had indicated that he was an accountant and that his accountancy business had made a profit of £8,230 for the tax year ending 5 April 2018; that he was primarily occupied with accountancy; but that he would give five-10 hours of his time each week to the proposed business.
The OTC had concerns around his main occupation, the nature of the proposed business and how it was to operate, and the suitability of the proposed operating centre. Accordingly, the OTC wrote to him asking for specific information to support the application.
Mr Hussain provided a copy of his tax return for the tax year, some accounts, some photographs regarding the proposed operating centre, some bank statements, a business plan and an executive summary.
Before the Tribunal Mr Hussain said that he had provided an estimate of future earnings from his accountancy business. He had told the OTC that the proposed business would be involved with school runs and transporting people to and from care homes. He would not, himself, be a driver for the business. He intended it to be a 'side business'. The proposed operating centre was his own residential address.
Dismissing the appeal, the Tribunal said that although the OTC and the TC were concerned about a range of matters, the primary concern was in relation to the question of whether the main occupation test had been met.
It was for Mr Hussain to demonstrate that the proposed business would not be his main occupation. That required him to provide information of some detail regarding his accountancy business and also regarding the proposed PSV business.
As to the accountancy business, it had, at least in the relatively recent past, generated little in the way of income. It would not require a great deal in the way of profitability from the proposed PSV business for that to become Mr Hussain’s main occupation.
Mr Hussain did indicate an anticipated net profit of £15,240 from his accountancy business for the 2018-19 tax year. However, he had not provided any meaningful written nor oral explanation as to how that estimate had been arrived at. There was little to cause the Tribunal to think the estimate went beyond a mere guess.
There was a suggestion of a 'yearly sales forecast' of £14,440 for the PSV business. Again, no meaningful explanation had been provided at any stage as to how that figure had been arrived at.
Turning to the PI issue, a Traffic Commissioner must not refuse an application for a licence without giving an applicant an opportunity to state his case at a PI “save where the application or the applicant’s conduct in relation to it is frivolous or unreasonable”.
Mr Hussain had not asserted that he should have been offered a PI. While it was possible that further information might have emerged had there been a PI, they were unable to say that the TC was wrong in deciding that there was no obligation to offer one in the circumstances of this case.
Speaking generally, they would expect it to be quite rare for applications to be refused without the offer of a PI given the stringency of the test.
