Neutral Citation Number: [2013] UKUT 425 (AAC)

Appeal No: T/2013/33

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

 

ON APPEAL FROM THE DECISION OF ANTHONY SECULER,

DEPUTY TRAFFIC COMMISSIONER for the WEST MIDLAND TRAFFIC AREA,

DATED 28/4/2013

 

 

Before:

Judge Mark Hinchliffe, Deputy Chamber President (HESC); Judge of the Upper Tribunal.

John Robinson, Member of the Upper Tribunal.

Michael Farmer, Member of the Upper Tribunal.

 

 

 

Appellant:

WILLIAM BAKER

 

 

Attendance:

For the Appellant: No Attendance or representation

 

 

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 6/8/2013

Date of decision: 28/8/2013

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed

 

 

Subject matter:

Automatic Termination. Exceptional Circumstances.

 

Cases referred to:

Alan Cooper Haulage & Woodhouse Furniture [2010] UKUT 171 (AAC)

 

 

 

 

 

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Deputy Traffic Commissioner for the West Midland Traffic Area made on 28/4/2013, when he refused to accept payment outside the prescribed period of the fee for the continuation of the appellant’s operator’s licence. This had the effect of confirming the automatic termination of the licence under the provisions of section 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995. It is established that such a refusal, on the basis that there were no exceptional circumstances to justify disregarding the effect of section 45(4), is capable of being appealed to this tribunal.

 

2)     The factual background to the appeal appears from the documents, the transcript and the Deputy Traffic Commissioner’s decision and is as follows:

(i)     The Appellant has been the holder of a standard national goods vehicle operator’s licence since 30/3/1993. Most recently, the license authorised three vehicles, with one vehicle in possession.

(ii)    In 2008, an issue arose with the operator over payment of his continuation fee. The operator had paid only part of the necessary fee for a 5-year continuation. As part of the process, at that time, of persuading the Traffic Commissioner to find exceptional circumstances to allow late payment of the balance, Mr Baker wrote to the Traffic Area Office stating:

“Firstly, my postal address is now as above. As it (the reminder) was sent to an old address I received my renewal forms later than I should … please contact me by the address above …”

The address given was Bednall Head Farm in Stafford.

(iii)  On 28/1/2013, the five-year renewal had come around and the Traffic Area Office wrote to Mr Baker at Bednall Head Farm reminding him that, to keep his licence in force, he had to pay the licence fee no later than 28/2/2013. Failure to do so, he was warned, would result in his licence terminating.

(iv)  The fee was not paid on time. On 6/3/2013 the Traffic Area Office received the fee with a note from Mr Baker stating:

“The payment for renewal is late because I did not receive it until today, 4/3/13. Our correspondence address is as above, Church Farm …”.

(v)   The Traffic Area Office replied to say that the fee had arrived late – but referred the matter to the Traffic Commissioner for him to consider whether there were exceptional circumstances. Enquiries revealed that Mr Baker had not previously advised the Traffic Commissioner’s office of the change of address – indeed the last piece of correspondence from Mr Baker was in 2009, and the address given was Bednall Head Farm.

(vi)  The matter came before the Deputy Traffic Commissioner who noted that there had been a previous issue over failure to pay the full fee on time, where exceptional circumstances had been found and the licence permitted to continue. The letter of 28/1/2013 had been correctly sent to the address that Mr Baker had specifically asked should be used. The Deputy Traffic Commissioner therefore concluded that there were no exceptional circumstances.

 

3)     At the hearing of this appeal, the Appellant did not attend and was not represented. We were informed that the he had indicated that he would like the appeal to be determined in his absence. We decided to determine the appeal on the papers before us.

 

4)     The Grounds of Appeal can be summarised by reciting the following extract:

 

“The licensing authority was informed many years ago that all correspondence should be addressed to Church Farm Bednall; this was in the days of the old Cumberland House, Birmingham … the current renewal was sent to Bednall Head Farm by mistake  -not my mistake I might add, but the Traffic Commissioner’s.”

 

5)     The matter was reconsidered in the light of the appeal, but the Deputy Traffic Commissioner maintained his view that there were no exceptional circumstances. The reference to ‘ the old Cumberland House’ demonstrated that any request to use the Church Farm address pre-dated by some time the correspondence in 2008 and 2009 – by which time all such matters were being dealt with at Leeds.

 

6)     Section 45(4) and (5) of the Act provides:

 

 45(4)-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.

 

45(5)-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)     We are satisfied that the Deputy Traffic Commissioner applied the correct test, as laid down in Alan Cooper Haulage & Woodhouse Furniture [2010] UKUT 171 (AAC). He considered the facts and the history, and made a reasonable decision on the individual merits. He was satisfied, as we are, that the 2013 reminder was sent to the address that Mr Baker had asked should be so used and, since that request was made, no further request was made to revert back to using the Church Farm address.

 

8)     The principal duty is upon the operator to ensure that the fee is paid on time. A reminder had been sent one month before the deadline to the operator’s nominated correspondence address, even though there is no legal requirement to do so. This operator had every reason to understand that failure to pay on time would give rise to automatic termination, unless there were exceptional - that is to say unusual or out of the ordinary – circumstances, so as to justify disregarding the effect of S.45(4).

 

9)     In our view, the Deputy Traffic Commissioner was entitled to find, on these facts, that there were no exceptional circumstances. The fault lay with the operator, and the Traffic Area Office could not be criticised. That being so, we find no reason to interfere with the Deputy Traffic Commissioner’s decision, and the appeal is dismissed.

 

 

 

Judge Mark Hinchliffe, DCP

28/8/2013