Neutral Citation Number: [2009] UKUT 253(AAC)

 

Appeal No.  2009/493

IN THE UPPER TRIBUNAL                   

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL FROM THE DECISION OF

Sarah Bell Traffic Commissioner for the

Western Traffic Area dated 22 June 2009

 

 

 

Before:

His Hon. Michael Brodrick

David Yeomans

Stuart James

 

 

Appellant:

JULIET JOYCE HUTCHISON

 

 

 

                                  

Attendances:

For the Appellant: Eugene Hickey, counsel.

 

 

Heard at:                        Victory House

Date of hearing:              5 November 2009

Date of decision:             16 November 2009

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that upon the Appellant undertaking to submit completed renewal checklists, by Recorded Delivery, to the Traffic Area Office for the Western Traffic Area and to Hillcrest House, Leeds, no later than 2359 on 26 November 2009 this appeal be ALLOWED.

 

                                                                                                                       

 

 

REASONS FOR DECISION

 

 

1.               This is an appeal from the decision of the Traffic Commissioner for the Western Traffic Area to revoke the Restricted Goods Vehicle Operator’s licence held by the Appellant on the ground that there had been a material change in circumstances.

2.               The factual background to the appeal appears from the documents and the Traffic Commissioner’s decision letter and it is summarised below.

3.               The Appellant is the holder of a Restricted Goods Vehicle Operator’s licence authorising 2 vehicles and 1 trailer.  The address of the operating centre was and remains 1 Bowrish Cottages, Crease Lane, Tavistock.  Until January 2009 the correspondence address was Meadowsweet, Gulworthy, Tavistock.  According to the Appellant she notified the Traffic Area Office, in January 2009, through the central office in Leeds, that her correspondence address had changed to Lew Wood, Coryton, Okehampton.

4.               The Appellant was aware of the need to renew the licence by 30 April 2009.  When she had not received any documents in relation to the renewal by 6 April 2009 she says that she faxed a handwritten letter, dated 6 April 2009, to the Traffic Area Office.  The letter was headed with the Lew Wood address and referred to the fact that she had given notification of her change of address about 3 months before.  It referred to the absence of documents and to the difficulty in getting through by phone.  The Appellant accepts that she has no proof that the Fax was sent or of the address to which it was sent.

5.               On 19 April 2009 the Traffic Area Office sent a reminder letter to the Appellant indicating that the appropriate fee had to be paid by 30 April 2009, and that the checklist, which was enclosed, had to be returned at the same time.  Unfortunately this letter was sent to the Meadowsweet address and not to Lew Wood.  It was returned to the Traffic Area Office marked ‘addressee gone away’.  It appears that another copy of the same letter, sent to 1 Bowrish Cottages, was also returned marked in a similar way.  We were told that this is the home of the Appellant’s ex-husband and that the couple are not on speaking terms.  No reminder was sent to the new correspondence address.

6.               Not having received the necessary documents the Appellant says that she telephoned the Traffic Area Office on 1 May 2009 and paid the fee.  While there is no specific confirmation of the phone call, nor is there any note of what was said, there is confirmation that she made a credit card payment of the fee on 1 May 2009.  However the written confirmation of that payment bears the Meadowsweet address.

7.               Also on 1 May 2009 VOSA wrote to the Appellant at the correct correspondence address and she produced the envelope to confirm this.  The Appellant said that the envelope contained a copy of the checklist identical to the one sent on 19 April still bearing the Meadowsweet address.

8.               Then on 6 May 2009 and 9 June 2009 the Traffic Area Office sent reminder letters in relation to the return of the checklist.  It would appear that these letters were sent to the Meadowsweet address and that they too were returned ‘addressee gone away’.

9.               On 26 June 2009 the Traffic Area Office wrote to 1 Bowrish Cottages and to the Meadowsweet address warning that the Traffic Commissioner was minded to revoke the licence because of a material change in circumstances.  The Appellant was informed that she could make written representations or request a Public Inquiry but that if none were received by 17 July the licence would be revoked.  This letter was sent by First Class post and by Recorded Delivery.  All copies were returned ‘addressee gone away’.  As a result on 22 July 2009 the licence was revoked and VOSA were requested to recover the vehicle disc.

10.            According to the Appellant the VOSA representative went to 1 Bowrish Cottages in order to recover the disc.  He was re-directed to the Lew Wood address and it was only when he arrived there that the Appellant became aware that the licence had been revoked.  This prompted the Appellant to telephone the Traffic Area Office.  A note was made by the person to whom the Appellant spoke.  That records that the Appellant said that she had informed Leeds ‘months ago’ about her change of address and that she had had a reply sent to the new address.  She was told that this was not the address on the licence or at the Traffic Area Office and that the Traffic Commissioner could only base her decision on the information available.  She was given advice about appealing.

11.            The Appellant consulted Solicitors who wrote on 6 August 2009 pointing out that she had not received any of the letters from the Traffic Area Office because they had been sent to the wrong address.  A copy of the handwritten letter of 6 April 2009 was attached to the letter and the Traffic Area Office were told that the Appellant said she had faxed it to that office.  The Solicitors also pointed out that the new licence and disc were sent to the correct address.  In all the circumstances they requested that the revocation of the licence should be stayed.  That application was granted on 6 August on the basis that it would lapse at 2359 hours on 28 August if an appeal had not been lodged by that date, which was 28 days after the Appellant became aware of the revocation.

12.            The Appellant appealed on the basis that the revocation of the licence was due to a failure in communication between Leeds and the Traffic Area Office in Bristol, rather than through any fault on her part.

13.            We have considerably sympathy with the Traffic Commissioner because on the information actually available to her this was obviously an appropriate case for revocation.  On the other hand this is by no means a typical case of an operator who deliberately avoids contact with the Traffic Area Office for whatever reason. 

14.            While there are a number of uncertainties in this case there is one point which is quite clear, namely that the Appellant paid the outstanding fee, on 1 May 2009, by Credit or Debit card.  Since the Traffic Area Office, at this stage, was writing to the wrong address it is reasonable to conclude that the Appellant took the initiative when making this payment.  In other words she was an operator anxious to comply with the system.  In those circumstances we find it difficult to believe that at the time this payment was made there was no reference either to the change of address or to the need to submit a checklist.  Mention of either topic would, almost inevitably, have led on to the other and mention of either should have brought home to the Traffic Area Office that they were writing to the wrong address.  Nevertheless the payment confirmation bears the Meadowsweet address not the new address.

15.            In addition there is no doubt that by 1 May 2009 VOSA knew the correct correspondence address because the appeal file contains a letter from them correctly sent to the new address.  In our view it is most unlikely that an operator, such as the Appellant, anxious to be compliant, would notify a change of address to VOSA but fail to notify Leeds and/or the Traffic Area Office.

16.            It seems to us, for these reasons, that it is more likely that the Appellant did notify her change of address than that she did not.  In our view the probability must be that there was a failure of communication between Leeds and the Traffic Area Office in Bristol, with the result that the correspondence address was never updated in the Traffic Area Office in Bristol.  A possibility, which ought to be investigated is that there was some failure to update the address in the Traffic Area Office at Bristol or to ‘embed’ it adequately into the computer system.  In other words we are satisfied, on the balance of probability, that the Appellant did notify her new correspondence address and that the Traffic Area Office continued to write to the wrong address as a result of a mistake on someone else’s part.  In those circumstances we are satisfied that the revocation cannot stand and must be set aside.

17.            Since it was not clear whether the Appellant had already submitted a completed checklist she gave an undertaking to do so, at our invitation.  The terms of the undertaking were that she would submit completed checklists, by Recorded Delivery, to the Traffic Area Office in Bristol and to Hillcrest in Leeds no later than 2359 on 26 November 2009

18.            On this basis and for these reasons the appeal will be allowed.

 

 

 

Michael Brodrick

 

His Hon. Michael Brodrick

16 November 2009