Neutral Citation Number: [2010] UKUT 153 (AAC)

 

Appeal No. T/2010/018

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 10 February 2010

 

 

 

Before:

His Hon. Michael Brodrick Judge of the Upper Tribunal

Leslie Milliken

David Yeomans

 

 

Appellant:

HORSEBOX MOBILE REPAIR SERVICES Ltd.

 

 

 

Attendances:

For the Appellant: Mr and Mrs Stoodley appeared in person on behalf of the Appellant

 

 

Heard at: Victory House

Date of hearing: 31 March 2010

Date of decision: 20 April 2010

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED on condition that the outstanding fee has been received no later than 2359 on 14 April 2010.

 

 

 

 

 

 

 

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the Western Traffic Area to refuse to disregard the fact that the Appellant’s licence had terminated following non-payment of the continuation fee on the due date. The Traffic Commissioner concluded that there were no exceptional circumstances within s. 45(5) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].

2.           The factual background to the appeal appears from the documents and the Traffic Commissioner’s decision letter and is as follows:-

                 (i)          The Appellant company is the holder of a Restricted Operator’s licence authorising the use of one vehicle. The licence was granted on 17 January 2008 and the first annual continuation payment was made on time.

                (ii)          On 2 December 2009 the Office of the Traffic Commissioner, (“the Traffic Office”), sent a letter to the Appellant stating that the annual renewal fee of £6 was due on 31 December 2009. The letter explained, in bold type and in three different places, that the licence would terminate if the fee was not paid by 31 December 2009. It also explained the various different ways in which payment could be made and added that ‘early payment means early receipt of up to date discs’.

              (iii)          On 19 January 2010 the Central Licensing Unit, (“the CLU”), wrote to the Appellant company indicating that the deadline for payment had passed and that no payment had been received, with the result that the licence had terminated as a result of the provisions in s. 45(4) of the 1995 Act. The letter ended by stating that in order to resume operating the Appellant would have to apply for a new licence.

              (iv)          On 20 January 2010, (a Wednesday), Mrs Stoodley first e-mailed the Traffic Office to explain that she had returned the form, by post, in order to pay the renewal fee but that it would appear that payment had not been received. She added that ‘there have been problems with the postal service all over the country and I am assuming that this is why the form was never received’.

               (v)          Mrs Stoodley was told in response to the e-mail that she should write to the Traffic Commissioner, she did so on the same day. The letter bears a CLU stamp dated 26 January 2010, (the following Tuesday). Mrs Stoodley said that on receipt of the letter dated 2 December 2009, in early December, she completed the debit card details required on the form and returned the form to the Traffic Office. She added that it had since come to light that the form had never been received by the Traffic Office, hence the failure to pay. She said that she had been advised to explain the position in order to seek re-instatement of the licence on payment of the outstanding fee.

              (vi)          The substance of this letter was set out in the recommendation which went to the Traffic Commissioner. The author of the recommendation made the point that until receipt of the letter of 19 January 2010 no steps had been taken on behalf of the Appellant company to ensure that payment had been received. He added that non receipt of an item sent in the post is not exceptional and that having decided to pay by post rather than over the phone some effort should have been made to check that payment had been received.

             (vii)          The Traffic Commissioner concluded that while the Appellant took some steps they fell below what was required, with the result that there were no exceptional circumstances which enabled her to disregard the non-payment.

           (viii)          The Appellant was informed of this decision by a letter dated 10 February 2010. That letter gave the Appellant the option of applying for a new licence or appealing to the Upper Tribunal.

              (ix)          By a Notice of Appeal dated 1 March 2010 the Appellant appealed to the Upper Tribunal. In describing the ‘Type of Case’ and setting out Grounds of Appeal the Appellant set out the position as summarised above. In addition the point was made that it would be silly to avoid paying a fee of £6 and that it was ‘unfair’, given the amount involved and the explanation given, to insist that the Appellant should undertake the time, trouble and expense of applying for a new licence.

3.           At the hearing of the appeal, Mr and Mrs Stoodley, the directors of the Appellant company, appeared, with our leave, on its behalf. They repeated the points which have already been made but added some others, which, ideally, should have been made to the Traffic Commissioner. Insofar as they amount to fresh evidence we are satisfied that we ought to take these matters into account. When asked why she had not paid by phone Mrs Stoodley replied that she had attempted to do so but that she had been kept waiting in the phone queue at Leeds for so long that she gave up and used the post instead. When asked why the non-arrival of the new licence disc had not alerted them to the fact that payment had not been received Mr and Mrs Stoodley explained that their post had been disrupted by the aftermath of the postal strike, the approach of Christmas and the bad weather immediately before and after Christmas, with the result that they were not unduly surprised by the non-receipt of the new disc. They made the point that given their isolated situation they were in effect marooned for many days both before and after Christmas.

4.           Having seen and heard Mr and Mrs Stoodley we are quite satisfied that they did put the payment authority in the post and that they are correct in saying that it would have been silly to avoid paying a fee of £6. In our view that alone would not amount to ‘exceptional circumstances’, though it does distinguish their case from many other non-payment appeals and it means that the question of whether or not there were exceptional circumstances has to be considered on the basis that there was an attempt to pay by one of the suggested methods. The dictionary meaning of ‘exceptional’ is ‘unusual’ or ‘not typical’, though what amounts to ‘exceptional circumstances’ in each individual case is a question of fact and degree having taken all the relevant factors into account, including the need to achieve a result that is proportionate to what is at stake. One relevant factor is likely to be whether the operator has made any attempt to pay. Another is likely to be the amount of money involved. A third is likely to be the question of whether non-receipt of the new licence disc or discs should have alerted the operator to the fact that payment had not been received, this point, in particular, follows from what is said in the letter informing the operator of the payment which is due. This is not intended to be an exhaustive list, these are simply factors which occur to us in the context of the present case.

5.           We have the benefit of more material than was available to the Traffic Commissioner, which, in turn, emphasises the importance of operators setting out the full picture when asking Traffic Commissioners to disregard the automatic termination of a licence following non-payment. In our view there are several factors in this case, which, in combination, satisfy us that the decision not to find that there were exceptional circumstances was plainly wrong.

6.           First, there is implicit criticism of the Appellant for making payment by post rather than over the phone. In our view such criticism failed to take account of the time of year, the disruption caused by the earlier postal dispute and the probability that the telephone lines to the Traffic Office at Leeds would have been more than usually busy. Each member of the Tribunal has had personal experience of being made to wait in a telephone queue. Not only is it an intensely irritating experience for anyone with other things to do but in our view it is sufficiently commonplace that it ought not to be dismissed as a possible reason for choosing the post rather than the phone when making payment. In addition to the post and the phone the third method of making payment is via the internet. However in order to register to make internet payments it is necessary to receive a password which is sent by post. It follows that in the circumstances of the present case internet payment would not necessarily have solved the problem because the operator was not registered. However once an operator is registered it seems to us that it provides the most reliable method of making payment, especially because it will give the operator the opportunity to print off evidence of payment.

7.           Second, it seems to us, given the statement in the letter of 2 December 2009 that ‘early payment means early receipt of up to date discs’, that it was essential that the bad weather both before and after Christmas was taken into account when assessing whether or not steps were taken to ensure that payment had been received. Given the state of the weather over an unusually lengthy period our view is that it was not unreasonable for Mr and Mrs Stoodley to assume that payment had been made but that the new disc had not been delivered because they were not receiving any post.

8.           Taking that fuller picture into account we are satisfied that the particular combination of circumstances put forward on behalf of the Appellant company does amount to exceptional circumstances. In our view any other conclusion would impose a disproportionate burden both on the Appellant and on those who administer the licensing system. The result is that the appeal is allowed on condition that the outstanding fee is received no later than 2359 on 14 April 2010.

 

 

 

 

 

Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals.

20 April 2010