Neutral Citation Number: [2009] UKUT 217 (AAC)

Appeal No.  2009/411

IN THE UPPER TRIBUNAL            

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF

R. TURFITT TRAFFIC COMMISSIONER for the

WEST MIDLAND TRAFFIC AREA Dated 21 May 2009

Before:

Frances Burton

Leslie Milliken

David Yeomans

Appellant:

L.S. COURT LIMITED

T/A COURTS OF FILLONGLEY

Attendances:

For the Appellant: G. Purchase, Director of the Appellant

Heard at:                       Victory House

Date of hearing:           11 September 2009

Date of decision:         10 October 2009

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

REASONS FOR DECISION

1.               This was an appeal from the decision of the Traffic Commissioner for the West Midland Traffic Area dated 21 May 2009 when he declined to accept late renewal of the operator’s standard international licence which was requested some six and a half months after the licence had automatically terminated upon failure to pay the renewal fee, which the operator had elected to pay annually.

2.               The factual background appears from the documents on the file including correspondence with the operator and the Traffic Commissioner’s decision on the late payment submission and is as follows :

(i)              The licence was granted on 1 August 1991 for 15 vehicles and the operator elected to pay the fees on an annual basis. The last fees of £840 and £27 were paid on 5 July 2007. An annual fee reminder was sent on 9 June 2008 and a chase up letter on 8 July 2008 to the address on the Traffic Area Office’s system. As no response was received by 31 July 2008, the expiry date for the discs, the licence automatically terminated.

(ii)             Having initially spoken to a member of the administrative staff on the telephone on 12 February 2009, on 20 March 2009 the Appellant wrote to the Traffic Area Office stating

“I would like to apply for the renewal of licence PD0000102. Since letting the licence laps (sic) the financial climate has changed so I want to extend my working life and reemploy the staff I hope as a long standing operator with a good record that you will consider my request formally”.

A member of the administrative staff then telephoned the Appellant to explain that the Traffic Commissioner could only accept late payment in exceptional circumstances and on 5 May 2009 the Appellant emailed

“Last July, as a result of health problems due to diabetes, I decided to stop operating coaches. My diabetes is now being controlled by insulin. This combined with the change in the financial climate has led me to believe that I would like to extend my working life and reemploy the staff I previously employed”.

The administrative staff member again spoke to the Appellant on the telephone and formed the view that the Appellant’s diabetes was not sufficiently serious as to lead him to forget to pay his fees. He was further concerned that this was the first mention of diabetes. Moreover there was another Director of the operator company listed who could have ensured the licence fees were paid on time, or at least contacted the Traffic Area Office earlier. The Appellant was therefore advised to make a new application.

(iii)            The team leader subsequently sent the file to the Traffic Commissioner with a recommendation that the licence had automatically terminated and should remain so as the Appellant had submitted no valid reason for non payment. The Traffic Commissioner reviewed the file and noted that there had been “a marked failure to communicate on any relevant issues” and “no satisfactory explanation for the delay or grounds to find exceptional circumstances to allow late payment; to do so would jeopardise fair competition. The Appellant is at liberty to submit an application for a new licence”. On 28 May 2009 the decision was communicated to the Appellant by letter.

3.               At the hearing of the appeal Mr G. Purchase, Director of the Appellant Company, attended personally and repeated the history. We asked him if he had received the Final Reminder letter dated 8 July 2008 making it clear that if he failed to return the licence fee by 31 July 2008 this “would result in the termination of your operator’s licence” and he confirmed that he had. We pointed out that this was the second of two reminder letters and that in the absence of exceptional circumstances, which he had not established, he must now apply for a new licence and that we must therefore dismiss the appeal as the Traffic Commissioner had in no way been wrong in his decision.

Frances Burton

10 October 2009