Neutral Citation Number: [2009] UKUT 277 (AAC)

Appeal No.  2009/506

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 2 September 2009

Before:

Judge Frances Burton

Leslie Milliken

David Yeomans

Appellant:

GRAINLINE LIMITED

Attendances:

For the Appellant: 

Heard at:                       Victory House

Date of hearing:           13 November 2009

Date of decision:         9 December 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED.

REASONS FOR DECISION

1.           This was an appeal from the Decision of the Traffic Commissioner for the Western Traffic Area dated 2 September 2009 when she declined to accept late payment of the annual fee following automatic termination of the Appellant company’s operator licence pursuant to s.45(4) of the Goods Vehicle (Licensing of Operators) Act 1995.

2.           The factual background appears from the documents and the written Decision of the Traffic Commissioner and is as follows.

(i)               The Operator has held a Standard National licence, now authorising 2 vehicles and 0 trailers, since 1993, with no adverse maintenance or compliance issues. On 3 June 2009 the Traffic Area Office sent a standard letter requesting a fee of £18 for continuation of the licence, to be paid by 30 June 2009, adding “No Reminder will be sent”, and that the licence would terminate on that date. The letter advised payment 2 weeks beforehand, by 16 June 2009. On 7 August 2009 the Traffic Area Office advised the Operator that the fee had not been received by the deadline and that the licence had therefore terminated automatically pursuant to s.45(4) of the Act.

(ii)              On 24 August 2009 the Traffic Area Office scanned onto their system an undated letter from the Operator, in which the Operator stated that a cheque had been posted on 25 June 2009 which had been cashed by the Traffic Area Office “around” 27 July 2009. The cheque number 004450 was said to be in sequence with surrounding cheques, and the Operator therefore requested renewal of the licence. On 27 August 2009 Traffic Area Office staff briefed the Traffic Commissioner, first suggesting refusal of this request as “it cannot be said that this operator has a blemish free record” as the initial payment by credit card had failed and the operator had had to write a cheque for the fee: however a more senior member of staff added “I am of the opinion that when an operator returns a payment by cheque, they have a right to expect the payment to make it to this office within a few days at the latest, and that a failure to pay fees due to delays with the postal service should be considered to be within “exceptional services” outside the operator’s control”. He considered the delay of 3 weeks to be “strange” but that “there was nothing on the licence record to suggest the operator cannot be trusted”. In the circumstances he recommended the operator “be given the benefit of the doubt”.

(iii)            However the Traffic Commissioner did not agree. She said “The onus is on the operator to make sure that payments are cleared before the expiry date. This operator had a timely reminder last year and should have been particularly careful to ensure payment had been received and cleared in 2009”. She said no exceptional circumstances had been made out and to renew the licence would be “contrary to TT authority”. However she granted a stay pending appeal as a number of similar cases were due before the Upper Tribunal. On 7 October 2009 the Traffic Area Office initiated refund of the fee of £18.

3.           At the hearing of the appeal the Operator company was not represented by any person but requested that the case be heard in their absence. We therefore carefully examined our file of documents and concluded that, while in normal circumstances the Traffic Commissioner is clearly right and that there is an onus on the operator to get a continuation fee in to the Traffic Area Office in time (as it is clear that this otherwise creates completely unnecessary work for the staff) there were exceptional circumstances here. There were known postal delays (some in excess of 3 weeks) which had been widely publicised in the national and regional press. In the Tribunal’s view exceptional circumstances have been established which are within the context of the authority laid down by other cases which have come before the Tribunal. Fortunately the collection of annual continuation fees is being phased out, as the Traffic Area Office’s initial letter to this operator makes clear, so that opportunities for operators to fall foul of a deadline for the purposes of s.45(4) are diminishing.

4.           The appeal is allowed.

Judge Frances Burton

9 December 2009