Neutral Citation Number: [2011] UKUT 207 (AAC)

 

Appeal No.  T/2011/03

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Sarah Bell

Traffic Commissioner for the Eastern Traffic Area

Dated 20 December 2010

 

 

 

Before:

Frances Burton, Judge of the Upper Tribunal

Leslie Milliken, Member of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

 

 

Appellant:

POLETECH SCAFFOLDING LIMITED

 

 

 

 

Attendances:

For the Appellant: William Hunter

 

 

Heard at: Victory House

Date of hearing: 20 April 2011

Date of decision: 20 May 2011

 

 

 

 

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 Eastern Traffic Area dated 20 December 2010 when she declined to reverse the automatic termination of the Appellant’s restricted operator’s licence under the provisions of s.45(4) of the Goods Vehicle (Licensing of Operators) Act 1995 as the continuation fee had not been received.

2.           The factual background appears from the documents and the decision letter of the Traffic Area Office and is as follows.

(i)               On 26 October 2010 the Eastern Traffic Area Office at Leeds sent the Appellant’s 5-yearly renewal checklist requiring payment to be made no later than 30 November 2010. The letter also requested the operator to “read all the information on the checklist and indicate any changes that have taken place, or where the information is incorrect”. It continued “You must also complete the section requiring up to date financial information. Once you have done this, please return the whole document together with the required fee, to the above address”. The letter was 11 pages long, containing numerous tables to be checked and amended if necessary, including a blank financial standing questionnaire which needed to be completed from scratch and a signature page requiring confirmation that the operator would remain fully compliant with undertakings and conditions recorded on the licence.

(ii)              On 10 December 2010 the same office wrote to the operator advising that the licence had automatically terminated for failure to pay the outstanding continuation fee. On 16 December 2010 “Elaine”, a member of the Appellant’s staff, sent an email to Emily Street in the Leeds office, following a telephone conversation between a member of the Appellant company’s staff and Ummer Farooq, a member of the Leeds office staff, in which the Appellant’s representative had been told of the despatch of the checklist in October 2010 “to renew the existing licence”. The email continued “We require the licence to be renewed immediately” and that the writer was “more than happy to make a telephone payment by debit card at your earlier convenience” asking for the company’s explanation (i.e. non-receipt of the checklist) to be passed to the Traffic Commissioner.

(iii)            On 20 December 2010 a lengthy internal submission (3 pages of specially drafted text) was sent by the Leeds office staff to the Traffic Commissioner setting out the history of the Appellant company and the timeline since despatch of the 11-page checklist letter, copying the email of 16 December 2010 and recommending refusal of the request to reinstate the licence, stating “The onus is on the Operator to ensure that the licence is still valid. An application pack should be sent out, should he wish to reapply”. This submission from Emily Street was supported by a further recommendation from David Beaton, in which, having repeated the information imparted in the email, he stated “non receipt of the checklist does not constitute the exceptional circumstances required to accept any late fee payment from the operator. In Collingwood 2008/569, the Transport Tribunal reasoned that a reminder of fees due was not a requirement, and therefore an operator cannot depend on this. Nor do the circumstances of this case indicate any possible exceptional circumstances as suggested in the appeals in Cooper (T2010/16) and Wootten (T2010/21). In those circumstances, given that the sole reason provided by the operator for the late fee is that the renewal checklist was not received, I agree that the late fee request is refused under section 45(4) of the Act, with the operator advised that the non-receipt of the checklist cannot be considered an exceptional circumstances (sic), and advised that they must re-apply for a licence should they wish to continue to operate”.

(iv)            To this the Traffic Commissioner responded “I note that the sole reason is oversight” and endorsing word for word the third and fourth paragraphs of Mr Beaton’s recommendation. The letter of 20 December 2010 was then sent to the Appellant company.

3.           At the hearing of the appeal the Appellant company was represented by Mr William Hunter who told us that he had no legal experience but had come to try to explain to us that as the company had not received the checklist which had now been brought to their notice, they had not been aware that a fee had been required and indeed of the amount of that fee. He referred to the Appellant company’s Notice of Appeal in which the grounds stated were: “The VOSA website (www.dft.gov.uk/vosa/repository) states in para.2.14

‘Continuous licensing means that you do not have to reapply for a new licence every 5 years. Instead your TAO will contact you every 5 years with a summary of the information it holds on record. You will be asked to confirm that information is correct and to pay the required continuation fee by a specified date.

This contact was never made.

As soon as Poletech Scaffolding Ltd received their earliest contact (letter dated 10/12/10)  they themselves contacted the Leeds office (byemail and phone call on 16/12/10). This document was signed by the sole Director of the Appellant company and requested that in the circumstances the automatic process be overridden and that the company be allowed to renew its licence “on a continuous basis” ‘”.

4.           Mr Hunter submitted that previously renewal had been allowed in case such as Sew It All 2006/36, The Racing Bug 2009/505 as well as the 2010 Wootten and Cooper cases referred to in the TAO’s internal document. We explained to him, however, that the matter had now moved on, and, since the Collingwood case also referred to, it was necessary to show “exceptional circumstances” as required by the legislation. We asked him if there was any special reason for non-delivery of the 11-page checklist letter. He replied that there were none known, although they did occasionally discover some incident of non-delivery. There had been no specific postal disruption in October 2010, the letter had clearly been addressed correctly and we wondered how the out of date licence had not been noticed by the drivers on their Daily Defect Report walkaround checks before taking the vehicles out on the road. Mr Hunter responded that the Appellant company was a small scaffolding operation with 2 employees, one was the sole Director and the other the Company Secretary in the office. The company had been incorporated in 2005, they had 3 vehicles, although the authorisation was for 5. The reality of the situation was that while the primary responsibility might be with the operator to renew the licence in time, the checklist was clearly intended to trigger that renewal, not least as it required information to be both checked and freshly supplied (i.e. the financial standing sheet questions asked for current information) and it notified the current amount to be met for financial standing and the current fee to be paid. He also submitted that the 11-page letter and the website statement that operators would be contacted were compatible, but the automatic discontinuance of the licence if the checklist letter was not received was completely incompatible with the website.

5.           We asked Mr Hunter if he had looked at the website and when that had been. He replied that he certainly had but that he could not remember when. He would certainly have done so when the company was incorporated. He added that the company had to have the authorised vehicles (and were currently operating on a stay). Without the vehicles they would have to close down and a new application would take at least 3 months. The company had nothing adverse against it previously and had expected to be asked to renew.

6.           In all the circumstances we consider that this appeal must be allowed. The website creates confusion by clearly raising a reasonable expectation that operators will be contacted and that continuous licensing is for their benefit, which it manifestly is not if automatic revocation occurs if the checklist letter is not received, resulting in disruption of an operator’s business. There is no evidence of a previous dilatory response from this operator. We accept that the Appellant company did not receive the checklist letter and consider that a complete reapplication is somewhat disproportionate when a legitimate expectation that contact would be made by the TAO is raised by the website notice.

7.           The appeal is allowed.

 

 

Frances Burton

Judge of the Upper Tribunal

20 May 2011