Neutral Citation Number: [2013] UKUT 323 (AAC)

Appeal No.  T/2013/17

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Richard Turfitt TRAFFIC COMMISSIONER for the Eastern Traffic Area

Dated 24 January 2013

 

 

 

Before:

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

Leslie Milliken, Member of the Upper Tribunal

John Robinson, Member of the Upper Tribunal

 

 

Appellant:

FRANCIS EDWARD WALTER CANTLE

 

 

 

 

Attendances:

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

 

 

Heard at: Field House, 15 Breams Buildings, London, EC4A 1DZ.

Date of hearing: 4 June 2013

Date of decision: 2 July 2013

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED.

 

 

 

SUBJECT MATTER:- Termination for non-payment

 

 

CASES REFERRED TO:- None

 

 

 

REASONS FOR DECISION

 

 

1.           This is an appeal from the decision of the Traffic Commissioner for the Eastern Traffic Area to refuse to disregard the fact that the Appellant’s Restricted Goods Vehicle Operator’s Licence had terminated as a result of non-payment of the continuation fee within the prescribed time.

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

(i)                   The Appellant was the holder of a Restricted Goods Vehicle Operator’s Licence authorising one vehicle.

(ii)                 On 26 November 2012 a letter was sent to the Appellant, addressed to the designated correspondence address, stating that the continuation fee to keep the licence in force had to be paid by 31 December 2012.  The Appellant was warned that failure to pay by that date would result in the termination of the licence.  A checklist and a request for current financial details were also enclosed and the letter ended with the warning that: ‘No reminder will be sent’.

(iii)                At close of business on 31 December 2012 the continuation fee had not been paid.  As a result the licence terminated automatically by virtue of s. 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].

(iv)                On 4 January 2013 the Central Licensing Unit at Leeds, (“the CLU”), received the continuation fee and the completed check list, which was dated 14 December 2012.  The CLU contacted the Appellant to advise him that the licence had terminated automatically.

(v)                 The Appellant explained to the CLU that the renewal fee and checklist were due to be posted on Monday 17 December 2012 but that on that day it was discovered that the business premises had been broken into and all the tree surgery equipment used for the business had been stolen.  The Appellant went on to explain that as a result the posting of the checklist and payment was delayed until 19 December 2012.  He said that it had been sent 1^st Class but that they had been having problems with the post.  The Appellant confirmed that he had a crime reference number for the burglary.

(vi)                The matter was submitted to the Traffic Commissioner with a recommendation to accept late payment, given the explanation and given the possibility that payment had been delayed in the post.  The Traffic Commissioner’s response was to ask for evidence to confirm the burglary and to ask for a copy of the cheque stub for the payment and the stubs immediately before and after that cheque stub, to confirm the date on which the cheque was written.

(vii)              On 9 January 2013 the CLU wrote to the Appellant to request this information.  The Appellant was required to provide it by 23 January 2013.

(viii)             On 18 January 2013 wrote to the CLU.  He said that on 17 December 2012 padlocks had been broken, that no items had been stolen, so the offence was not reported to the Police.  He went on to say that the premises had been broken into again on 8 January 2013 when equipment worth £4,000 had been stolen.  He gave the crime reference number for this incident.  He went on to say that after further investigation it appeared that payment had been issued late, due to an oversight on his behalf, but he noted that the payment had been accepted.  He asked the Traffic Commissioner to take into account that he had held an Operator’s Licence for 10 years, without attracting any offences or prohibitions.  He apologised and referred to the fact that it would be extremely difficult to continue to operate his landscape business without an operator’s licence.

(ix)                On receipt of this letter the CLU contacted the Appellant, who said that the renewal payment had been sent on 2 or 3 January 2013.  When told that his clarification would be put before the Traffic Commissioner the Appellant stressed that he would be unable to trade without an operator’s licence.

(x)                 The file was put before the Traffic Commissioner so that he could consider the matter afresh.  The Traffic Commissioner said this:

“The further enquiries identified in my decision of 8 January 2013 have proved to be entirely necessary.  On the basis of the updated information I remain to be satisfied that the late payment was as a result of exceptional circumstances and the application is therefore refused.”

(xi)                On 24 January 2013 the Appellant was informed that since the fee had been received late because it was posted late the Traffic Commissioner had directed that the automatic termination of the licence, in accordance with s. 45(4) of the 1995 Act must stand because there were no ‘exceptional circumstances’ in this case.  The Appellant was informed that the payment, which had been held on account pending a decision, would be refunded in full.

(xii)               On 18 February 2013 the Appellant filed a Notice of Appeal against this decision.  In his grounds of appeal the Appellant repeated the explanation set out in paragraph 2(viii) above.  He added that payment for the continuation of the licence had been accepted but had not been refunded.  He suggested that this meant that there was a contract to issue a licence.  He added that he had had the lorry inspected and serviced.  He stressed the difficulties faced by his business following the theft of equipment and the loss of his operator’s licence.  He enclosed correspondence to confirm some of these points and a letter which he had written to his Member of Parliament, who then wrote to the Tribunal expressing the hope that the Tribunal would be able to take into account the impact on the Appellant’s business and his previous good record.

3.           The appeal was listed for hearing at 10.30 a.m. on 4 June 2013.  It was reached at 11.15 a.m.  Before proceeding further the Tribunal Clerk was requested to check whether the Appellant was in the building and to ask whether the Tribunal staff had received any message from the Appellant either explaining his absence or requesting an adjournment.  The Tribunal Clerk informed us that the Appellant was not present and that no message had been received from him.  In those circumstances we decided to hear and determine the matter in the absence of the Appellant.

4.           We considered all the matters set out in the appeal file in order to decide whether the decision of the Traffic Commissioner was plainly wrong.  Our starting point must be that the Traffic Commissioner and the Tribunal are both bound to apply the provisions of s. 45 of the 1995 Act. 

5.           In particular s. 45(4) provides that: “If any fee or instalment of a fee in respect of the continuation in force of an operator’s licence is not duly paid by the prescribed time, the licence terminates at that time”.  The Appellant accepts that due to an oversight on his part the continuation fee was paid a few days after the prescribed time of 31 December 2012.  It follows from the words of the Act that the licence terminated on 31 December because payment had not been received by the prescribed time.

6.           In our view the only real issue in this case is whether or not the Traffic Commissioner correctly exercised the discretion given by s. 45(5) of the 1995 Act, which provides that: “The Traffic Commissioner may, if he considers there to be exceptional circumstances that justify his doing so in any case where subsection (3) or (4) has applied, direct that as from the time mentioned in that subsection its effect in that case be disregarded”.

7.           If the initial explanation given by the Appellant had proved to be correct it may well be that the Traffic Commissioner would have concluded that there were exceptional circumstances in this case.  No doubt it was with this possibility in mind that he requested confirmation of what the Appellant had said.  In our view the request for further information was appropriate and proportionate.  Indeed the wisdom of asking for confirmation was amply confirmed by what followed, because far from being supported the explanation was significantly undermined.

8.           At the end of the day it seems to us that the question is whether the Traffic Commissioner was plainly wrong to conclude that payment made a few days late, as a result of an oversight, did not amount to ‘exceptional circumstances’.  We have no hesitation in saying that the Traffic Commissioner was plainly right to conclude that such an explanation did not amount to exceptional circumstances.  Taking the contrary view would effectively render the expression ‘exceptional circumstances’ meaningless.  In addition it would be likely to result in an unacceptable administrative burden, because of the number of operators who would be tempted to pay late and then claim to have done so through inadvertence or an oversight.  For these reasons the appeal is dismissed.

9.           It follows that if the Appellant still requires an operator’s licence he will need to start afresh with an application for a new licence.

 

 

 

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

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

2 July 2013