Neutral Citation Number: [2013] UKUT 602 (AAC) Appeal No: T/2013/64

 

 

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

 

ON APPEAL FROM THE DECISION OF FIONA HARRINGTON,

DEPUTY TRAFFIC COMMISSIONER for the WEST OF ENGLAND TRAFFIC AREA,

DATED 9 SEPTEMBER 2013

 

 

Before:

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

Mr L Milliken Member of the Upper Tribunal.

Mr D Rawsthorn, Member of the Upper Tribunal.

 

 

 

Appellant:

MICHAEL STEVEN REED

 

 

 

Attendance:

For the Appellant: Mr M Reed, in person (accompanied by Mrs D Reed)

 

 

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 15 November 2013

Date of decision: 26 November 2013

 

 

DECISION OF THE UPPER TRIBUNAL:

 

IT IS HEREBY ORDERED that the appeal be dismissed.

 

 

 

Subject matter:

Non-payment of continuation fee. Exceptional circumstances.

 

 

Cases referred to:

1998 K35 Derek Bertram

2008/569 D Collingwood

2009/518 Rose & Sons Ltd

 

 

REASONS FOR DECISION:

 

1)     This was an appeal from the decision of the Deputy Traffic Commissioner for the West of England Traffic Area made on 9/9/2013 when she decided that there were no exceptional circumstances that would justify her disregarding the automatic termination provisions of Section 45(4), Goods Vehicles (Licensing of Operators) Act 1995.

 

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

(i)     The Appellant is the holder of a Standard National Goods Vehicles Operators Licence authorising 4 vehicles. The licence commenced on 26/8/2008. The five year continuation fee therefore became payable by no later that 31/7/2013.

(ii)    At some stage, Mr Reed employed a Mr Ellacroft, principally as a driver but, because Mr Reed regards himself as unable to use computers effectively (or at all), one of Mr Ellacroft’s additional tasks was to go online in order to notify the Traffic Commissioner’s office of changes to vehicles specified on the licence. At some stage, therefore, Mr Ellacroft advised the office that the operator would conduct business electronically, and he provided his email address – which was then used in relation to the operator’s business dealings with the office, such as specifying and de-specifying vehicles.

(iii)  Subsequently, Mr Ellacroft ceased working for Mr Reed, but the email address provided was not changed, cancelled or removed. However, it has not been used since (at the latest) September 2011.

(iv)  On 1/7/2013, the office issued the 5 year checklist to the operator and reminded the operator that the continuation fee of £397.00 was payable by 31/7/2013. The office warned the operator that failure to pay by the deadline would result in the licence automatically terminating.

(v)   In the first instance, this communication was sent by email to (what transpires to be) Mr Ellacroft’s email address. In a written statement, Mr Ellacroft says that he did not think it right to open it. However, he also says that he did not forward it to Mr Reed, and he did not take any other steps to notify Mr Reed that the office was attempting to contact him.

(vi)  The office was able to tell that the email had not been opened and so, on 8/7/2013, the checklist and fees warning letter would have been printed off and posted to Mr Reed, in accordance with normal procedures.

(vii) Mr Reed, however, says that he did not receive any hard copy communication and, unfortunately, he had not set up any system within his business to ensure that he paid the continuation fee on time.

(viii)         Consequently, the fee was not paid and the licence automatically terminated. A letter advising Mr Reed of this was posted on 12/8/2013 to the same address as the earlier warning letter, and this was received.

(ix)  Mr Reed immediately got in touch with the office and explained the position and asked for permission to pay out of time. However, the Deputy Traffic Commissioner refused this request on 9/9/2013.

(x)   Further communication ensued, including telephone calls, and emails between the office and Mrs Reed – who has her own email address. On 24/9/2013 Mr Reed appealed to the tribunal against the Deputy Traffic Commissioner’s refusal to find exceptional circumstances for disregarding the failure to pay the fee on time. The appeal form indicated that a stay had been requested and refused – which was not the case.

(xi)  The Traffic Commissioner noted the misunderstanding regarding a stay, and decided to consider whether or not to grant a stay. By email dated 14/10/2013 a Licensing Caseworker advised the operator that the Traffic Commissioner had granted a stay subject to payment of the full five-year continuation licence fee of £397 being made within 7 days, and completion of the licence checklist.

(xii) Mr and Mrs Reed said, at the tribunal hearing, that as a consequence of the Traffic Commissioner seeking payment of the full five-year continuation fee, they believed that the Traffic Commissioner’s office had relented about whether or not to accept the fee, and so they sent the fee of £397 to the office, which was accepted. Having only one vehicle in possession at this time (EU05NVY) a blue disc for this vehicle was requested - and it was issued - showing an expiry date of 31/7/2018.

(xiii)         On 15/10/2013 the Traffic Commissioner’s office wrote a further letter to Mr Reed. The letter said:

 

“A request for the grant of a stay pending appeal had not been considered as a stay request had not been received. In view of the apparent wish for a stay to be considered, a request for a stay has now been referred to the Traffic Commissioner for consideration. A decision has been returned and the Traffic Commissioner has agreed a stay is granted in order to preserve your position as an operator and allow you to continue to operate pending the decision on your appeal to the Upper Tribunal (Transport). The traffic commissioner has directed that the grant of a stay is conditional upon payment being made by you by no later than 22 October 2013 of the continuation fee that was payable on or before 31 July 2013. If this payment is not made then this application for a stay shall be deemed refused and you and the Upper Tribunal shall be notified accordingly.”

 

(xiv)         The letter went on to say that, on receipt of the continuation fee and completed checklist, new licence documentation would be issued under the terms of the existing licence, until the outcome of the appeal was known.

 

3)     At the hearing of this appeal, Mr Reed attended without legal representation. His wife, Mrs Reed, accompanied him. Mr and Mrs Reed confirmed the facts as set out above, stressing that they were not told about the email sent on 1/7/2013, and that they did not receive the hard copy version, sent a week later to their correct postal address.

 

4)     Mr Reed admitted that he had not notified the office of Mr Ellacroft’s departure or taken any steps to change or remove the email address held on the Traffic Commissioner’s records, and he had not taken any steps on his own account to ensure that he remembered to pay his continuation fee on time.

 

5)     It appeared that Mr and Mrs Reed had misunderstood the basis upon which the Traffic Commissioner had finally accepted the full five-year fee, and they produced their blue disc (for the one vehicle currently in possession) that plainly showed an expiry date of 31/7/2018.

 

6)     We turn to consider the legal position. Section 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995 (“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.

 

Section 45(4) of the Act  provides:

 

“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)     The Act does not specifically provide for a right of appeal against a traffic commissioner’s refusal to disregard the effect of Section 45(4). However, in 1998 K35 Derek Bertram and 2009/518 Rose & Sons Ltd the tribunal held that, notwithstanding the failure of the legislation to provide a right of appeal:

 

“It was implicit in the approach by both the [then Senior] Traffic Commissioner and the Department (for Transport) that an appeal lies to the tribunal in non-payment of fees cases and that stays should be granted where appropriate.  This approach is the more necessary with the emphasis since given to human rights and we think that a purposive construction must be given to the relevant legislation.”

 

8)     The reference to the approach of the Senior Traffic Commissioner and the Department for Transport is important because, given the absence of a statutory right of appeal, the smooth running of this extra-statutory but pragmatic solution depends upon the consent (or at least the cooperation) of the Traffic Commissioners and the Department.

 

9)     If for any reason the Traffic Commissioners or the Department decided that circumstances had changed, or that the time had come to revisit this approach, the tribunal would need to hear full argument about its jurisdiction from all interested parties. For the purposes of this case, we proceed on the basis that there is a right of appeal to the tribunal.

 

10) In a previous decision of the tribunal, 2008/569 D Collingwood, the high threshold for establishing exceptional circumstances was confirmed. Indeed, in that case, the tribunal made it plain that

 

“There is no provision for reminders in the Act and the statutory position is clear: if a fee is not paid by the prescribed time, the licence terminates.”

 

11) In the present case, it is hard to see what more the office could reasonably have done. A reminder was sent to the email address used by the operator to transact business with the office. That email address had not been cancelled, removed or changed. Then, when it was noted that the email had not been opened, the office sent a hard copy version by post.

 

12) There is no explanation as to why it was not received (if that be the case) but, in any event, there is no reason to believe that it was not sent, in accordance with normal procedures. If there is any fault, it lies with Mr Reed for not setting up his own reminder, and not keeping the office up-to-date with regard to email contact. The fact that Mr Reed says that he did not receive any reminders, despite reminders being sent, does not – in our view – amount to exceptional circumstances under the Act, and we consider that the Deputy Traffic Commissoner was entitled to reach the view that she did.

 

13) That disposes of this appeal. The appeal is dismissed.

 

 

 

14) As a postscript, we note that the power of the Traffic Commissioner (and the tribunal) to grant a stay arises in Section 28(2) of the Act:

 

28(2) – The traffic commissioner may direct that any direction or order given or made by him under-

(a) section 26(1), (2) or (6),

(b) section 27(1), or

(c) section 28(1) or (4)

- shall not take effect until the expiry of the time within which an appeal may be made to the (tribunal) against the direction or order and, if such an appeal is made, until the appeal has been disposed of.

 

(3) If the traffic commissioner refuses to give a direction under subsection (2) the holder of the licence or, as the case may be, the person in respect of whom the direction or order was given or made may apply to the tribunal for such a direction.

 

(4) The tribunal shall give its decision on any application under subsection (3) within 14 days.

 

15) It will be seen that a “stay” can only relate to a decision of the Traffic Commissioner to make a specified direction or order, not to the automatic effect of the Act. And there is no mention of any power to grant a stay in a case involving a decision not to disregard the effect of Section 45(4).

 

16) Moreover, as a matter of logic and interpretation, the granting of a “stay” generally has the result that the stayed decision does not take effect – we would not expect a stay to have the consequence of positively making a decision that the Traffic Commissioner has declined to make.

 

17) Although we were uncomfortable with the idea of a stay being granted upon payment of a fee, we accept that in the case of 1998 K35 Derek Bertram the Traffic Commissioner accepted a one-year fee in order to issue a one-year continuation licence so as to preserve the status quo pending appeal, and that this approach was approved of by the tribunal at the time. Since then, the position has changed, insofar as only a five-year continuation fee can be paid, and (we understand) only a five-year continuation licence can be issued.

 

18) We have not heard any argument about the means whereby such a licence, once issued, can be revoked under the Act (or what right of appeal there might be, following any such revocation). We simply note that Mr Reed, having paid the full five-year continuation fee, now finds himself in possession of an apparently valid operator’s licence and a blue disc with an expiry date of 31/7/2018.

 

 

Judge Mark Hinchliffe, DCP

26 November 2013