Neutral Citation Number: [2010] UKUT 172 (AAC)

Appeal No. T/2010/12

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of Lester Maddrell

Deputy Traffic Commissioner for the

Western Traffic Area

Dated 28 January 2010

Before:

Frances Burton, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

Appellant:

GARY STONE GROUNDWORKS LIMITED

Attendances:

For the Appellant: No appearance

Heard at: Victory House

Date of hearing: 14 April 2010

Date of decision: 12 May 2010

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 Deputy Traffic Commissioner for the Western Traffic Area dated 28 January 2010, confirming that there were no exceptional circumstances justifying reversal of the automatic termination of the operator’s licence in line with the provisions of s 45(4) of the Goods Vehicle (Licensing of Operators) Act 1995 (failure to make timely payment of the continuation fee for the licence).

2.           The factual background appears from the documents, the letter from the Traffic Area Office dated 18 January 2010 notifying the automatic termination and the Decision of the Deputy Traffic Commissioner referred to above, and is as follows.

(i)               On 1 December 2009 the Traffic Commissioner’s Office wrote to the operator company drawing their attention to the need to pay the continuation fee by 31 December 2009, together with a request for up to date details of financial standing. The letter enclosed 9 further pages of checklists and information (explaining the changed arrangements for collecting the continuation fee) and a declaration to be signed by or on behalf of the operator. The total amount to be paid was £397 and in 2 places the operator was clearly notified that “No Reminder Will Be Sent” and that the whole document “with the required fee” must arrive “no later than 31/12/2009”.

(ii)              As no reply was received the letter of 18 January 2010 was duly despatched. On 21 January 2010 a Mrs D. Picariello wrote to the Central Licensing Office at Leeds on behalf of the operator stating that she had just spoken to the writer of the letter of 18 January 2010, asking if she could pay the late fee immediately, and had been told to write to the Traffic Commissioner to make this request. Her letter stated: “It is totally my fault, I completely forgot about it in the December invoices … Please can you let me, this once, pay for this over the phone and renew the licence with immediate effect?”. She had added “I have never been late before and we are only a small business with one lorry”. The letter was referred to the Deputy Traffic Commissioner on 25 January 2010 by a member of the office staff, who identified the circumstances as “only of an administrative error” which did not constitute “the exceptional circumstances required by s 45(5) in order to justify reversing the automatic termination of the licence”. He therefore recommended that the late payment should be refused under s 45(4) and the operator be invited to apply for a new licence. The team leader agreed with this recommendation and on 28 January 2010 the Deputy Traffic Commissioner agreed that the team should “proceed as recommended”.

(iii)            On 29 January 2010 the team member dealing with the file wrote again confirming the original decision, pointing out that the operator now had no legal authority to operate until a new licence had been granted or a successful appeal made to the Upper Tribunal (Transport). On 3 February 2010 an appeal was made to the Administrative Appeals Chamber of the Upper Tribunal, repeating the history, and submitting that the Deputy Traffic Commissioner’s Decision was “a bit of a severe decision to take”. The appeal letter repeated “It was an oversight … and we can assure you we have never before, or will ever again, miss a payment. To have to reapply for the licence will cost us dearly and seems a little extreme”.

3.           At the hearing of the appeal the Appellant company was not represented but had sent written representations stating that no-one was able to attend “due to the distance involved”. The Appellant company’s letter of representations, dated 25 March 2010, submitted that the company was a small business based in Cornwall and undertaking contracts in Cornwall and South West Devon. Since 2002 the company had grown in size and had “been lucky enough to win jobs” that had kept their workforce in employment. However the sudden economic downturn had hit them badly as one of their biggest client had gone into administration owing them £120,000. They had been able to win enough new contracts, however, so that they had been able to keep their employees in work without laying anybody off. Ultimately they had had to take on more employees and several sub-contractors as, in September/October 2009, their workload had suddenly “increased dramatically virtually overnight”. This had also increased Mrs Picariello’s workload considerably, so that she had had to increase her hours and by Christmas 2009 was “snowed under with work and finding it very hard to cope”. She recognised that this did not excuse the non-payment. She reiterated that the company had only one 7.5 tonne lorry, the fee would have been only 3 weeks late, they did not intentionally avoid payment and were suffering inconvenience through not having a vehicle available.

4.           While the failure to pay on time may be a “genuine oversight” on the part of an operator it is clear from the amount of paperwork generated by this failure to make a routine administrative payment on time how much inconvenience and expense of public money is generated by such an operator’s “genuine oversight”. The purpose of s 45(4) is therefore readily seen, and as the operator clearly knows when a licence payment will become due there is no unfairness in expecting that operator, in the absence of “exceptional circumstances”, simply to pay automatically. The recent line of decisions to be found on the Tribunal’s website indicates equally fairly the cost effective nature of expecting an operator to co-operate in renewing a licence however busy the underlying business may be. The Traffic Commissioner’s correspondence also clearly indicates that reminders would not be sent and the Act in fact makes no provision for them.

5.           As there are no exceptional circumstances in the present case we can see no case for invoking s 45(5) and cannot see where the Deputy Traffic Commissioner was “plainly wrong”. While we have some sympathy for a small company successfully riding out the economic downturn to the extent of being overloaded with work, we have to say that the obvious response to this administrative error was to make another application as quickly as possible.

6.           Accordingly we must dismiss the appeal.

Frances Burton

Judge of the Upper Tribunal

12 May 2010