Neutral Citation Number: [2014] UKUT 287 (AAC) Appeal No: T/2014/18

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

(TRAFFIC COMMISSIONER APPEALS)

ON APPEAL FROM THE DECISION OF NICHOLAS JONES,

TRAFFIC COMMISSIONER for the WEST MIDLANDS TRAFFIC AREA,

DATED 21/2/2014

Before:

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

Mr S James, Member of the Upper Tribunal.

Mr A Guest, Member of the Upper Tribunal.

Appellants:

GUISEPPE & GIOSUE BILLE t/a CONTRADA FARMS UK

Attendance:

For the Appellants: No attendance or representation

Appeal heard at: Field House, Breams Buildings, London

Date of hearing: 5 June 2014

Date of decision: 20 June 2014

DECISION OF THE UPPER TRIBUNAL:

IT IS HEREBY ORDERED that the appeal be dismissed.

Subject Matter:

Late payment of continuation fees.

Cases referred to:

2008/569 David Collingwood t/a Construction and Demolition Services

2009/492 Clemente Fanciulli t/a P B Haulage

2001/062 T S G Smith t/a Western International

2010/018 Horsebox Mobile Repairs Ltd

REASONS FOR DECISION:

1)    This was an appeal from the decision of the Traffic Commissioner for the West Midlands Traffic Area made on 21/2/2014 when he found no exceptional circumstances to justify interfering with the statutory termination of the operator’s licence following late payment of the continuation fee.

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

(i)    The Appellants were the holders of a restricted operator’s licence authorising two vehicles. On 24/12/2013 the Traffic Commissioner’s office wrote to the appellants to advise them that, to keep their licence in force, the fee of £397 must be paid no later than 31/1/2014. The fee was not paid on time.

(ii)   On 4/2/2014, the office received a cheque for the fee. In response to an enquiry concerning the reasons for the late submission of the fee, the office received a letter from Mr Corden, the company book-keeper / accountant. He says that he works at the firm two days a week and the letter from the Traffic Commissioner’s office was in his in-tray. However, January is a busy time in relation to his other job at a firm of Chartered Accountants and, consequently, the letter was “completely overlooked”. Mr Corden found the reminder letter on 2/2/2014 and posted a cheque by first-class post on 3/2/2014. The failure to pay the continuation fee was, therefore, a complete oversight.

(iii)  The grounds of appeal suggest that it was realised on 1/2/2014 that the cheque had not been posted – but this is contradicted by Mr Corden’s letter, which clearly states that it was “Sunday 2^nd February” when he found the reminder in his in-tray.

3)    At the hearing the appellants did not attend and were not represented. The tribunal received a letter from Giuseppe Bille, dated 1/6/2014, stating that “circumstances unfortunately mean that we are unable to attend the hearing in person”. It was pointed out in this letter that the appellants have not previously failed to meet the deadline, and the failure was an oversight.

4)    We decided to determine the appeal on the documentary evidence before us.

5)    Section 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995 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”.

6)    The tribunal considered the effect of this provision, combined with the Act’s silence in relation to reminder letters in the cases of 2008/569 David Collingwood t/a Construction and Demolition Services and 2009/492 Clemente Fanciulli t/a P B Haulage. The tribunal concluded that the Act placed responsibility for renewal ‘fairly and squarely on the operator’.

7)    Section 45(5) of the 1995 Act provides that:

“The Traffic Commissioner may, if he considers there to be exceptional circumstances that justify his doing so … direct that as from the time mentioned in that subsection its effect is to be disregarded”.

8)    This is not a case where the review date caused any confusion. The appellants have left payment of the renewal fee to a part-time book/keeper accountant and did not check that payment was made in time. We note, on the other hand, that this is the first time the deadline has been missed, and we accept that it was an oversight.

9)    There is a clear line of tribunal authority that, where there is a case of mere oversight, more is required before exceptional circumstances may properly be found (see 2001/062 T S G Smith t/a Western International, and 2010/018 Horsebox Mobile Repairs Ltd). The position is also fully set out in the publicly available Senior Traffic Commissioner guidance document (No 9), Paragraph 63 – available at:

https://www.gov.uk/government/publications/senior-traffic-commissioners-statutory-guidance-and-statutory-directions

10) Clarity and consistency require that a deadline be set, which it was – in accordance with the law. The consequences of failing to adhere to the legal requirement were properly spelled out. There are many deadlines that the law requires to be adhered to, subject (sometimes) to exceptional circumstances being established. A reminder was sent and received and ample time was given. In our view, whilst accepting that human error can happen, we do not assess the explanation given as a sufficiently unusual reason or explanation for non-payment, and it does not amount to exceptional circumstances.

11) Consequently, the appeal is dismissed.

Judge Mark Hinchliffe, DCP

20 June 2014