Neutral Citation Number: [2012] UKUT 160 (AAC)

Appeal No.  T/2012/08

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of

Nick Jones TRAFFIC COMMISSIONER for the West Midland Traffic Area

Dated 12 December 2011

 

 

 

Before:

H. H. Michael Brodrick, Judge of the Upper Tribunal

David Yeomans, Member of the Upper Tribunal

George Inch, Member of the Upper Tribunal

 

 

Appellant:

BRIAN RICHARDS t/a B. RICHARDS

 

 

 

 

Attendances:

For the Appellant: The Appellant did not appear and was not represented

 

 

Heard at: Victory House, 30-34 Kingsway, London

Date of hearing: 30 April 2012

Date of decision: 10 May 2012

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

 

 

 

 

 

 

SUBJECT MATTER:- Termination for Non Payment,

 

 

CASES REFERRED TO:- T/2010/16 & T/2010/21 Alan Cooper t/a Alan Cooper Haulage and Jeanette Wootten t/a Woodhouse Furniture

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the West Midland Traffic Area to refuse to accept late payment of the fee for continuing the operator’s licence, on the ground that there were no exceptional circumstances.

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

(i)                   The Appellant is the holder of a restricted goods vehicle operator’s licence authorising three vehicles, which had been in force since 4 December 2012 and had a review date of 20 December 2012.

(ii)                 On 24 October 2012 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant to remind him that payment of the renewal fee was due no later than 30 November 2012.  The letter began, in large bold capitals, with these words:

“Please read carefully – failure to reply to this letter and to return your licence fee by 30/11/2011 will result in the termination of your operator’s licence”.

It then set out the action which the Appellant was required to take if he wised to continue to hold a licence.  This included an invitation to check that the details about the licence, held by the OTC, were correct.  The fee required for three vehicles was £391.  In large bold type at the foot of page one the letter said this:

“No reminder will be sent”.

(iii)                The Appellant failed to pay the required fee by 30 November 2011.  On 12 December 2011 the OTC wrote to the Appellant to inform him that since the deadline had passed and payment had not been received his licence had been automatically terminated under the provisions of s.45(4) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  He was reminded that he no longer had authority to operate goods vehicles and that if he wished to continue to do so he must first apply for a new licence, with the possibility of applying for an interim licence pending determination of the full application.

(iv)                The letter of 12 December 2011 prompted an email reply from the Appellant’s daughter asking the OTC to accept late payment.  The explanation given was that the Appellant had misplaced the paperwork, at a very busy time of the year, and, as a result had forgotten to make the payment.  The Appellant’s daughter went on to point out that there had been no other reminder and that the review date on the licence differed from the date when payment was said to be due.  The Appellant’s daughter ended by describing herself as “assistant at Wales and Border Counties Liquid Feeds Ltd.

(v)                 This email was considered by several members of the team at the OTC.  The initial recommendation was that there were no exceptional circumstances.  While the Team Leader did not disagree with that recommendation he was more concerned about the fact that the operator, who had been granted a licence as a sole trader, was now trading as a limited company, so that an application for a new licence was required, in any event.  As a result he recommended that the application should be refused.  The Traffic Commissioner agreed that there were no exceptional circumstances and concluded that it would  not be appropriate to accept late payment, especially, given the apparent change in the entity operating the vehicles.

(vi)                On 17 January 2012 the OTC wrote to the Appellant stating that despite the explanation in the email the original decision must stand and that if the Appellant wished to continue to operate he must either apply for a new licence or appeal, successfully to the Tribunal.

(vii)              On 12 February 2012 the Appellant filed a Notice of Appeal.  The grounds of appeal set out the nature and importance of the Appellant’s business, which involves delivering food supplements, containing minerals and vitamins for farm animals and the consequences should the Appellant be unable to operate.  The Appellant also repeated the points in the email, which have been summarised above.

(viii)             The Appellant stated in the Notice of Appeal that the Traffic Commissioner had been invited to stay the decision pending the hearing of the appeal and that the application had been refused.  However it is apparent from the comments made when the matter was reconsidered by the OTC and the Traffic Commissioner, in the light of the Notice of Appeal, that no request for a stay had been received by the Traffic Commissioner.  For the avoidance of doubt the Traffic Commissioner made it clear that his original decision stood and that he would not have granted a stay to enable a limited company to operate on a licence granted to a sole trader.

(ix)                On 24 February 2012 the OTC wrote to the Appellant pointing out, amongst other things, that he appeared to be operating as a limited company on an operator’s licence granted to him as a sole trader.  The Appellant was again invited to apply for a new licence and again told that if he did so the Traffic Commissioner would be prepared to grant an interim licence.

(x)                 The Appellant invited the Tribunal to hear and determine the appeal in his absence.

3.           The Tribunal has considered the question of termination for non-payment in a number of decisions of which T/2010/16 & T/2010/21 Alan Cooper t/a Alan Cooper Haulage and Jeanette Wootten t/a Woodhouse Furniture is the most recent.  The Tribunal has stated on several occasions that there is no requirement in the1995 Act to send out reminders, so there is clear justification for the words at the foot of the first page of the reminder letter, (quoted at paragraph 2(ii) above).  Next the Tribunal has said that the 1995 Act requires that there is an ‘exceptional’, that is to say an unusual reason or explanation for non-payment.  We can see no justification for concluding that misplacing paperwork or forgetting about the need to make a payment can be described as exceptional or unusual.  In our view the Traffic Commissioner was plainly right to reject the application to make a late payment.

4.           But there is another and more important reason why the Traffic Commissioner was right to reject the application for late payment in this case.  The licence was granted to ‘Brian Richards t/a B Richards’.  In other words it was granted to a sole trader using a trading name.  However it now appears that the vehicles are being operated by a limited company ‘Wales and Border Counties Feeds Ltd’.  In the eyes of the law a sole trader and a limited company are quite different legal ‘people’ or legal entities.  It is the legal entity which operates the vehicles which must hold an operator’s licence.  In our view this means that the Traffic Commissioner was correct when he refused the application and informed the Appellant that if he wished to continue to operate as a limited company he would need to apply for a new licence in the name of the limited company.

5.           It follows that for these reasons the appeal must be dismissed.  We urge the Appellant, if he wishes to continue to operate, to apply for a new licence as a matter of urgency and to apply in addition for an interim licence.

 

 

 

 

 

His Hon. Michael Brodrick, Judge of the Upper Tribunal,

Principal Judge for Traffic Commissioner Appeals and President of the Transport Tribunal.

10 May 2012