Neutral Citation Number: [2014] UKUT 50 (AAC)

Appeal No.  T/2013/58

T/2013/75

IN THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

TRAFFIC COMMISSIONER APPEALS

 

ON APPEAL from the DECISION of Nick Jones TRAFFIC COMMISSIONER for the West Midlands, Dated 24 July 2013

ON APPEAL from the DECISION of Sarah Bell TRAFFIC COMMISSIONER for the West of England, Dated 26 September 2013

 

 

 

Before:

His Hon Michael Brodrick, Judge of the Upper Tribunal

George Inch, Member of the Upper Tribunal

Michael Farmer, Member of the Upper Tribunal

 

 

Appellant:

PATRICK WARD t/a ALLSHIRES LANDSCAPES

 

Appellant:

OVERBROOK RECOVERY SERVICES LIMITED

 

 

 

Attendances:

For the Appellant: Mr Ward appeared in person, Overbrook Recovery Services Ltd were neither present nor represented.

 

 

Heard at: Field House, 15-25 Bream’s Buildings, London, EC4A 1DZ

Date of hearing: 17 January 2014

Date of decision: 31 January 2014

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that both appeals be ALLOWED.

 

 

 

 

 

SUBJECT MATTER:- Termination for non-payment

 

 

CASES REFERRED TO:- Appeal 1998 K 35 Derek Bertram

Appeal 2009/18 Rose & Sons Ltd

T/2013/84 Michael Steven Reed

 

 

REASONS FOR DECISION

 

 

1.         These are appeals from decisions of the Traffic Commissioner for the West Midlands, (in the case of Patrick Ward t/a Allshires Landscapes), and the Traffic Commissioner for the West of England, (in the case of Overbrook Recovery Services Ltd).  In each case the Traffic Commissioner refused to find that there were exceptional circumstances that justified disregarding the automatic termination of the operators licences held by each of these Appellants.  The automatic termination of their licences occurred as a result of non-payment of the fee for the continuation in force of the licence.

2.         We heard these appeals separately but now give a joint decision because both appeals give rise to common issues.

Patrick Ward t/a Allshires Landscapes – The Facts

3.        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 one vehicle.  The address of the operating centre and the correspondence address are both shown on the Licence Checklist to be: “Boundary Farm, Withybrook Road, Bulkington, Bedworth, CV12 9JW, (“Boundary Farm”).

(ii)              On 21 May 2013 the Office of the Traffic Commissioner, (“OTC”), wrote to the Appellant.  The letter began with a warning, in large bold type, that failure to reply to the letter and to return the licence fee by 30 June 2013 would result in termination of the licence.  The letter contained enclosures comprising a checklist setting out details of the licence, a request for current financial information and details of the fee, which had to be paid to keep the licence in force.  The letter stated that the continuation fee of £397 covered the period until 30 June 2018.  It ended with the statement: “No reminder will be sent”.

(iii)             On 10 July 2013 the OTC wrote to the Appellant at Boundary Farm.  The letter referred to the fact that the Appellant had been reminded to pay the continuation fee by 30 June 2013 and that he had been warned of the consequences of failing to do so.  It went on to point out that the deadline had passed and that, because the continuation fee had not been paid, the licence had terminated automatically under the provisions of s. 45(4) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"].  The Appellant was informed that he no longer had authority to operate any goods vehicle for which an operator’s licence is required.  He was given contact details to obtain an application for a new licence.

(iv)            On 18 July 2013 the OTC received a letter signed by the Appellant but written on his behalf.  In the letter the Appellant said that two years before he had provided a new address, namely Boundary Paddock.  Attached to the letter signed by the Appellant was a copy of the letter dated 10 July 2013.  At the top left-hand side, where the name and address appear the word “Farm” has been struck out and the word “Paddock” written in.  In other words it was being made clear that the new address simply substituted Paddock for Farm, there was no further change.

(v)             On 24 July 2013 the matter was considered by the Traffic Commissioner, who had the benefit of comments and recommendations from two members of staff.  The manuscript letter signed by the Appellant was scanned into the document, which went to the Traffic Commissioner, but it would appear that the copy of the letter of 10 July 2013, with the altered address was not added.

(vi)            It was said on checking the system there was no trace of any letter requesting a change in correspondence address.  Nevertheless the initial recommendation was that in view of the fact that the Appellant had paid on time in the past the licence should be re-instated, coupled with a warning about the need to ensure that future renewals should be made on time.

(vii)           The next recommendation referred to two recent Tribunal decisions in which the operator sought to rely on exceptional circumstances.  (Since these decisions clearly turned on their own facts, which were different, it is difficult to see how they could assist in making a decision in this case).  The recommendation went on to point out that there is no statutory requirement to send a reminder and that it is the operator’s responsibility to know when the licence is due for renewal.  It was then suggested that it was unusual that the letter advising the Appellant that the licence had been revoked was received, though sent to “Boundary Park” (sic), whereas the checklist had not been received.  The final recommendation was that the licence should not be re-instated.

(viii)          The Traffic Commissioner reluctantly agreed with this recommendation, on the ground that the circumstances did not come within the scope of the legislation, especially given that it is for operator’s to renew without the need for a reminder.

(ix)            On 8 August 2013 the OTC wrote to the Appellant at Boundary Farm, not Boundary Paddock.  The letter stated that the Appellant’s explanation had been placed before the Traffic Commissioner who had directed that the automatic termination of the licence could not be set aside.

(x)             On 20 August 2013 the Appellant filed a Notice of Appeal.  In his grounds of appeal he re-iterated that he had sent a letter explaining the change of address but that notwithstanding this the OTC continued to write to Boundary Farm not Boundary Paddock.  He stressed the importance to his business and his family of retaining an operator’s licence.

Overbrook Recovery Services Ltd – The Facts

4.        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 standard international goods vehicle operator’s licence authorising 3 vehicles.  The licence check-list indicates that the Appellant company has five directors, one of whom, Katie Ann Griffiths is the nominated Transport Manager.

(ii)              On 25 July 2013 the OTC sent a letter to the Appellant in identical terms, (save for the dates and licence number) to the letter described at paragraph 3(ii) above.  In the case of this Appellant the continuation fee had to be paid by 31 August 2013.  The fee payable, covering the period up to 31 August 2018, was £397.

(iii)             On 16 September 2013 the OTC wrote to the Appellant in terms identical to the letter described at paragraph 3(iii) save, of course, for the dates, stating that as a result of non-payment the licence had automatically terminated.

(iv)            On 21 September 2013 Katie Griffiths wrote to the OTC on behalf of the Appellant.  She asked for the licence to be re-instated explaining that she had been on maternity leave, that the correspondence failed to reach her before the deadline and that, in any event, she believed that the review date was 29 September 2013.  In support of that proposition she referred to a copy of the Goods Vehicle Operator’s Licence which she sent as an appendix to her letter. 

(v)             Katie Griffiths enclosed a copy of the operator’s licence with her letter.  Whether she enclosed the whole document or simply the first page is unclear. The first page of the licence states that it is: “in force from 29/09/2003”.  It goes on to state that the: “Review date is 29/09/2013 and at five-yearly intervals thereafter (see note 9)”.  Initially the appeal bundle simply contained the first page but we were later provided with a further 6 pages, the last of which sets out the Notes.  Notes 1 and 9 are important.  Note 1 reads as follows:

“Subject to the revocation or other termination under any relevant provision of the 1995 Act, this licence will continue in force indefinitely.  If the fee payable to continue in force the licence at each five year cycle is not paid by the deadline stated in the associated fee request, the licence will automatically terminate on that date.  Automatic termination will also apply if a licence holder opts to pay vehicle fees annually, but subsequently fails to pay any instalment”.

Note 9 defines “date of review” as a reference to the Traffic Commissioners’ powers to undertake a periodic review of the operating centres specified on licences, stating that it is available every five years.

(vi)            On 26 September 2013 the matter came before the Traffic Commissioner on the basis of comments and recommendations from two of the staff at the OTC.  The facts were summarised and the explanation given was quoted.  Commenting on that explanation the point was made that being on maternity leave might be an acceptable explanation for a sole trader but it was not acceptable for an operator with 5 directors.  The recommendation was that late payment should not be accepted because the Appellant should have been aware that the licence was due for renewal and should have ensured that the fee was paid on time.  That recommendation went to a more senior member of staff at the OTC.  She agreed with the comment about maternity leave.  She went on to point out that Katie Griffiths had confused the ‘review date’ of 29/9/2013, which is shown on the licence with the ‘pay-by date’ of 31/8/2013, which does not appear on the licence.  A copy of the licence was attached to the email submission to the Traffic Commissioner and reference was made to the terms of Note 1, which makes it clear that the ‘pay-by date’ is set out in the fee request document.  This member of staff went on to state that the licence discs would also give the renewal date of 31 August 2013.  Again the recommendation was that the licence should not be re-instated.

(vii)           The Traffic Commissioner accepted these recommendations for the reasons given.  On 26 September 2013 the OTC wrote to the Appellant stating that the automatic termination of the licence could not be disregarded and must stand.

(viii)          On 28 October 2013 a Notice of Appeal was filed on behalf of the Appellant.  The grounds of appeal repeated the points which we have summarised above.  In addition it was said that one of the Appellant’s vehicles had been stopped at a roadside check and that the VOSA Inspector also took the view that the relevant date for payment of the continuation fee was 29 September 2013. (That is not altogether surprising, given the passage from VOSA’s Guide for Operator’s of HGV’s, (“GV74”), which we quote below). It was submitted that this reinforced the point about confusion in relation to the dates.  The Notice of Appeal was accompanied by a letter from Trevor Griffiths, the Managing Director.  He explained that his daughter, Katie, who is the CPC holder tends to be possessive about paperwork and was convinced that the paperwork concerning the renewal of the licence did not reach her in time, given that all those involved were convinced that the relevant date was at the end of September 2013.  He added that the Appellant’s cheque for the continuation fee appeared to have crossed in the post with the letter of 26 September 2013 informing the Appellant that the automatic termination could not be disregarded.

Discussion – General

5.         We propose to begin by setting out the relevant statutory provisions.  The duration of an operator’s licence is governed by s. 16(2) of the 1995 Act which provides that: “subject to its revocation or other termination under any provision of this Act or any other statutory provision an operator’s licence (other than an interim licence issued under section 24) shall continue in force indefinitely”.

6.         The requirement to pay fees is set out in s. 45 of the 1995 Act.  The relevant provision for these purposes is s. 45(4) which 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”.

7.         The expression ‘prescribed time’ is defined in the Goods Vehicles (Licensing of Operators) (Fees) Regulations 1995, (“the 1995 Fees Regulations”).  Part I of the Schedule to these Regulations provides that the continuation fee must be paid: “before the end of the month which precedes the date of expiry of a period of 5 years beginning with the date of either the issuing of the licence or the most recent 5 year anniversary of that date whichever is the later”.  The simplest way in which to approach this definition is to begin by considering the date on which the licence was issued.  The first continuation fee must be paid by the end of the month immediately before the month in which the fifth anniversary of the start of the licence occurs.  Thereafter the continuation fee is payable by the end of the month preceding each 5 year anniversary of the date of issue of the licence. While the continuation fee must be paid by the end of the month preceding each 5 year anniversary operators would be well advised not to leave payment until the last moment for two reasons.  The first is to ensure that payment is actually received before automatic termination occurs and the second is to enable the OTC to send out the new vehicle discs before the old discs have passed their expiry date.

8.         The Tribunal has said on many occasions that there is no statutory requirement to give notice to an operator that a continuation fee is about to become payable and that it is the primary responsibility of the operator to pay the fee.  We are satisfied that the first part of this proposition remains correct because there is no provision in the 1995 Act or in either of the 1995 Regulations requiring that notice must be given when a continuation fee is about to become due.  While we remain satisfied that the primary responsibility for payment remains with the operator it is clear from the additional information available to us that this responsibility is neither as one-sided or as simple to carry out as may have been previously thought.

9.         To the best of our knowledge this is the first occasion on which the Tribunal has had an opportunity to see the full terms of an operator’s licence when considering an appeal against a refusal to disregard the automatic termination of a licence as a result of s. 45(4) & (5) of the 1995 Act.  In particular we do not believe that the terms of Note 1 to an operator’s licence have ever previously been considered.  Nor do we believe that the potential for confusion between the review date and the prescribed time for payment has ever emerged as starkly as it does in one of the present appeals, (we will use the short-hand expression ‘pay-by date’ from now on to mean the prescribed time for payment of a continuation fee). 

10.      In view of these new points it seems to us that we ought to re-consider the approach to automatic termination.  We say that for two reasons, which we will consider in the paragraphs immediately below.

11.      Page 1 of an operator’s licence sets out two dates.  The first is the date from which the licence is in force, (there is a statutory requirement to include this see s.16(1) of the 1995 Act).  The second is the date of the next review, which will be on the same day and the same month but at five-yearly intervals after the licence came into force.  It follows that there is no direct reference to the pay-by date on page 1 of an operator’s licence.  On its own Note 1 does not provide a precise date because it simply refers to “the deadline stated in the associated fee request”.  In our view it would have been more helpful to have set out the definition in the 1995 Fees Regulations because this would have enabled operators to work out the correct date.  However, an even clearer and fairer way to deal with the matter would have been to state on page 1 of the licence the date by which the first continuation fee must be paid, followed by a note stating that further continuation fees must be paid before each fifth anniversary of that date.  Once an operator receives a fee request it is possible to ascertain the date when the fee is next payable, because of the statement at the bottom of page 1 that the fee then due covers a period until the date given.  Whether it is actually realistic to expect operators to conclude that this will be the next pay-date is another matter, since it depends on inference rather than a direct statement that this will be the case. 

12.      It was said in one of the recommendations that went before the Traffic Commissioner in the second of these appeals that: “the licence discs would also give the date of renewal”.  We question whether this is, in fact, correct.  Our understanding is that the date on the licence disc is the review date not the pay-by date, hence the fact that the VOSA Inspector agreed, (see paragraph 4(viii) above), that that licence was due for renewal at the end of September.

13.      In our view the effect of Note 1 on the licence is to give rise to a reasonable expectation, on the part of operators, that “the associated fee request” will be sent by the OTC to the current correspondence address in sufficient time for payment to be made before automatic termination occurs.  We have underlined the word ‘sent’ (a) because the OTC cannot be required to guarantee delivery and (b) because operators have an obligation to ensure that the OTC is in possession of a current correspondence address at which the operator knows that letters and other documents will be received.  In practice this will not make a significant difference in most cases.  The fee request is already sent out as a matter of courtesy.  It is accompanied by documents, which, once completed and returned enable Traffic Commissioners to decide which operators should be reviewed.  It seems to us that there are strong practical reasons why this practice will continue.  It will therefore make little difference, in most cases, whether the documents are sent as a matter of courtesy or whether there is a reasonable expectation that they will be sent.

14.      In the past the Tribunal has urged operators to make diary entries to act as a reminder of the date when the continuation fee will be due.  In addition it has been suggested that this can be ascertained from the date on the disc displayed in the operator’s vehicles.  In view of what we now know we have to question whether these suggestions are as practical or reliable as they appeared to be at the time.  Once an operator has paid the continuation fee for the first time it seems to us that it is reasonable to suggest carrying forward a diary entry giving the date by which the next continuation fee is payable.  But until the first continuation fee has been paid the only ways in which an operator can ascertain the pay-by date appear to be by working it out from the definition in the 1995 Fees Regulations or by asking the OTC.

15.      Any operator seeking assistance as to the pay-by date from the December 2011 revised edition of the VOSA Guide GV74 is liable to be misled if they attempt to calculate the pay-by date by reference to what is said.  We say that because of the way in which the relevant passage is expressed.  This is what it says:

“Continuation fee (for an existing licence)

The continuation fee is payable every five years, so you will have to pay the first payment five years after your licence was granted. The fee covers the costs of maintaining and monitoring the licence for another five years. It is non-refundable”.

 The statement that: “you will have to pay the first payment five years after your licence was granted” is simply wrong because it does not accord with the definition of the prescribed time for payment which we have quoted from the fees regulations.  This passage simply enables those who consult it to determine the review date, (which as we have pointed out appears on the licence) and it encourages them to believe that this is also the pay-by date, which it is not.  It should be removed or revised as a matter of urgency.  Until this is done it seems to us that reliance on this passage, coupled with payment before the review date would be capable of amounting to an exceptional circumstance.  Whether, in fact, it will justify disregarding automatic termination will be a matter to be decided on the facts of each individual case.

16.      We have already questioned whether the date on the vehicle disc is a reliable indicator of the pay-by date.  Our belief is that what it shows is the review date and that it does so for a very good reason.  We are reinforced in that belief by the passage in the fee request letter under the heading ‘Early Payment Means Early Receipt of Up to date Discs’.  This passage begins by making the point that it is unlawful to operate specified vehicles without displaying a valid disc, which we take to mean a disc that is still ‘in date’.  The passage goes on to urge operators to make early payment so that new documents can be issued before the existing documents expire. In our view this explains why the pay-by date and the review date differ and why the date on vehicle discs must be the review date.  If that was not the case and the date on the vehicle disc was the pay-by date operators would be left without valid discs until such time as the new discs were delivered and the point about making early payment to ensure continuity would be a hollow one.

17.      In our view it follows, when deciding whether or not there are exceptional circumstances which justify setting aside the automatic termination of a licence, that all concerned should take into account the following:

                    (i)        That the effect of Note 1 is to give rise to a reasonable expectation that a request for payment of the continuation fee will be sent to the operator’s current correspondence address.

                   (ii)        That ascertaining the pay-by date, in the absence of a fee request, is not as straightforward as the Tribunal appears to have thought, especially for those paying for the first time.

                  (iii)        That there is scope for confusion between the pay-by date and the review date and the date on the vehicle disc is the latter not the former.

Patrick Ward t/a Allshires Landscapes – Conclusion

18.      The Appellant appeared in person at the hearing of the appeal.  The seriousness with which he took this matter can be judged by the fact that he had broken his leg, which was in plaster, and he told us that he had left at 6.0a.m. in order to ensure that he attended the hearing in good time.

19.      He was adamant that he had sent a letter to inform the OTC/CLU that his address had changed.  He accepted that he had not received any acknowledgement from them.  He explained that he used to live at Boundary Farm but that the premises had been split and he had moved next door to Boundary Paddock.  He said that following the move the new occupier of Boundary Farm passed on some but, it would appear, not all, the letters addressed to him at his old address.  Hence the fact that he received some but not all the letters from the OTC.

20.      We were impressed by the Appellant and came to the conclusion that he was probably correct in saying that he had informed the OTC/CLU of his change of address.  This was not a major change of address.  All that was needed was to change the one word ‘Farm’ to ‘Paddock’.  The ease with which this could have been overlooked by the OTC/CLU is demonstrated by what happened when the decision letter dated 8 August 2013 was sent to the Appellant.  It was sent to his old address, Boundary Farm, not the new address, Boundary Paddock.  As from 18 July 2013 the OTC/CLU ought to have been aware of the change (a) because it went to the heart of the issue which the Traffic Commissioner had to decide and (b) because it was clearly set out on the copy of the letter of 10 July 2012, which had been amended to set out the new address and was received on 18 July 2013. 

21.      This was a first renewal so that unless the Appellant received the fee request he faced the difficulties we have described above in ascertaining the pay-by date.  One of the recommendations to the Traffic Commissioner refers to the fact that it was the Appellant’s responsibility to “know when the licence is due for review”.  This comment shows how easy it is to confuse the review date, the term used in this comment, with the pay-by date, which is the date that matters for these purposes.  We regret to say that the reference to knowing when the licence was due for review simply invited the Traffic Commissioner to take an irrelevant consideration into account. 

22.      Comment was made to the effect that it was unusual that the decision letter was received but that the fee request was not.  It seems to us that this is pure speculation and may not take into account that the Appellant had simply moved next-door.  In any event the comment is supported by the proposition that the letter in question was also sent to “Boundary Park”.  As far as we can see this is the only mention of that address in the appeal bundle.  We find it difficult to see how this supports the proposition that it was unusual, in this particular case, for one letter to reach the Appellant while another did not.

23.      Taking all these matters into account we are satisfied that there were exceptional circumstances, which justified disregarding the automatic termination of the licence.  They arise from the fact that this was a first renewal and that the fee request was probably sent to the wrong address and, as a result, was not received by the Appellant.  We take into account, in addition, that the suggestion that it was the Appellant’s responsibility to know the review date, which was easily ascertained, was misleading because the relevant date is the pay-by date, which only appears in the fee request.

24.      For these reasons the appeal of Patrick Ward t/a Allshires Landscapes is allowed and the automatic termination of his licence must be disregarded.

Overbrook Recovery Services

25.      The Appellant was neither present nor represented at the date of the hearing.  The Appeal was the last to be called by which time it was early in the afternoon.  By that time no message had been received from the Appellant either giving an explanation for it s absence or making an application for an adjournment.  In those circumstances the Tribunal decided to determine the appeal on the papers.

26.      The Appellant put forward two main reasons for disregarding the automatic termination of it’s licence.  The first was that the Transport Manager was on maternity leave at the material time.  The second was that steps had been taken to make sure that the continuation fee was paid but they were intended to ensure payment by the review date not the pay-by date because it was assumed that the two were the same.

27.      We agree with the comment that in a company with five directors plans should have been made to cover the responsibilities of the Transport Manager while she was on maternity leave.  However such plans would probably not have ensured that the continuation fee was paid on time.  We say that because Katie Griffiths says that she believed that the review date was on 29 September 2013, (which it was), and, by inference, she is saying that this was also the pay-by date.  She goes on to say that she only learnt that this was not the case when the correspondence relating to the renewal fee reached her, by which time it was too late.  Her explanation is reinforced by the fact that payment was made before the renewal date, albeit it was after the pay-by date.

28.      It seems to us that the real issue in this case is the scope for confusion between the review date and the pay-by date and the difficulty in ascertaining the latter date before the fee request letter has been received.  We start by taking into account that this appears to be an operator who has taken to heart the need to have some system in place to give early warning of the need to pay the continuation fee.  The problem is that it was ineffective because it was based on the wrong date.  Given the difficulty in ascertaining the pay-by date, for the reasons we have set out, given the ease with which the review date can be ascertained, given the fact that even members of staff in the OTC can confuse the two dates, (see the facts of the other appeal) and given the fact that it was suggested to the Traffic Commissioner in this appeal that the pay-by date was the date on the vehicle discs, (which is not correct), we have come to the conclusion, on the facts of this particular case, that the Appellant’s confusion between the review date and the pay-by date does amount to an exceptional circumstance which justifies disregarding the automatic termination of the licence.

29.      Accordingly the appeal of Overbrook Recovery Services Ltd is allowed and the automatic termination of the licence must be disregarded.

Postscript

30.      In view of several recent decisions, to which we will refer, we believe that the time has come to re-consider the Tribunal’s approach to listing appeals in relation to ‘Termination for Non-Payment’ of the continuation fee.  We are particularly concerned about: (i) the delay between the decision not to disregard the automatic termination of the licence and the determination of an appeal, (ii) the fact that there is no provision which enables a Traffic Commissioner or the Tribunal to grant a stay, (iii) the fact that the majority of Appellants are likely to be able to resume lawful use of HGV’s more quickly by making an immediate application for a new licence rather than appealing.

31.      We are satisfied that there is no statutory right of appeal against termination for non-payment of the continuation fee or against a refusal to disregard such termination.  The reason is that neither s. 45(4) or s. 45(5) of the Goods Vehicles (Licensing of Operators) Act 1995, ["the 1995 Act"] features in s. 37 of the 1995 Act, which provides for the statutory right of appeal to the Tribunal.

32.      However, since at least 1998 the Tribunal has accepted, heard and determined appeals against decisions to refuse to find that there were exceptional circumstances that justified disregarding the automatic termination of an operator’s licence.  Furthermore it is clear that the Department of Transport has been aware, at least since Appeal 1998 K 35 Derek Bertram, that the Tribunal has adopted a purposive approach to accepting appeals on this point and that, to date, it has not sought to argue that the Tribunal’s approach is either inappropriate or unlawful.

33.      Given the long history of accepting, hearing and deciding appeals on this point our view is that it would be wrong for the Tribunal, of its own accord, to change its long-standing practice.  If the Department of Transport, (or anyone else, for that matter), takes the view that the Tribunal should refuse to accept appeals on this point then it seems to us that the appropriate course is for the Department, (or anyone else with a legitimate interest), to apply to be made a party to an appeal, so that the point can be fully argued.  Until such time as the Tribunal, (or the Court of Appeal), rules that the Tribunal ought not to hear appeals on this point we believe that operators now have a legitimate expectation that the Tribunal will hear such appeals.

34.      In Appeal 2009/18 Rose & Sons Ltd the Tribunal, having accepted that an appeal lay to the Tribunal, went on to say, (without reference to the 1995 Act) that: “stays should be granted where appropriate”.  More recently in T/2013/84 Michael Steven Reed the Tribunal gave more detailed consideration to the question of whether there was any right to grant a stay in this category of appeal.  First, it pointed out that neither s. 45(4) nor s. 45(5) of the 1995 Act feature in s. 29(2) of the 1995 Act.  That is the sub-section which sets out the circumstances in which a stay can be granted. Second, it pointed out that the power to grant a stay relates to specific decisions made by Traffic Commissioners not to the automatic termination prescribed by s. 45(4) of the 1995 Act.  Third, it pointed out that the effect of a stay is to prevent a decision coming into effect not to reverse a decision to refuse to make a finding.  In other words where the Traffic Commissioner refuses to disregard the automatic termination of a licence staying that decision would simply mean that the automatic termination remained effective.

35.      We agree that the Tribunal has no power to grant a stay whether the application is to reverse the automatic termination of the licence under s. 45(4) or to stay a decision by a Traffic Commissioner not to disregard such automatic termination.  It follows that unless the Traffic Commissioner is prepared to take steps to enable the operator to operate lawfully pending the hearing of an appeal there will, inevitably, be a period of time following automatic termination during which the operator cannot, lawfully, operate any goods vehicle in circumstances in which the operator must hold an operator’s licence.

36.      In the appeal of Reed, (see above) the Tribunal referred to the fact that it appeared from the appeal of Bertram, (see above), that the Traffic Commissioner, in that case, had accepted the fee for a one year licence in order to preserve the status quo pending an appeal.  The Tribunal pointed out that the position has since changed in that a five year continuation fee would have to be paid and a five year licence would have to be issued.  It is a matter for the Traffic Commissioner in each individual case to decide whether or not to take the course of issuing a new licence.  However we want to make three things very clear.  First, this is not a course which the Tribunal has any power to take.  Second, this is not a course which the Tribunal can compel a Traffic Commissioner to take and third, as the Tribunal pointed out in the appeal of Reed, it gives rise to a number of unanswered questions.  For example, (i) is there any ground on which the licence can be revoked if the appeal fails and (ii) is there any provision for refunding money or recovering licence discs if the appeal fails?

37.      Following the automatic termination of an operator’s licence the operator concerned faces a stark choice.  One course is to apply for a new licence and, at an appropriate stage in that procedure, apply for an interim licence.  We appreciate that this is expensive but it may well offer the swiftest route to resuming lawful operation of HGV’s.  The second course is to appeal.  While this may be the cheaper option experience suggests that the overall result is likely to be a longer delay in resuming the lawful operation of HGV’s.  We say that for two reasons.  The first is that experience suggests that it will take several months from the date of the decision to refuse to disregard automatic termination to the date when the Tribunal issues its decision following the hearing of the appeal.  These appeals, which in our experience are not untypical, give some idea of the likely delay.  In the first of these appeals the delay between automatic termination and this decision is more than 7 months and the delay between the refusal to disregard and the decision is nearly 6 months.  In the second appeal the periods are, respectively, 6 months and over 4 months. The second is that experience also shows that most of the appeals against a refusal to disregard automatic termination fail.  If an appeal is dismissed in this situation the only other way that an operator can lawfully return to operating HGV’s is by a successful application for a new licence.

38.      Operator’s need to weigh up these options carefully before deciding which one to take.  In many cases the extra cost of making a fresh application will be justified by the reduction in the period of time when the operation of HGV’s is unlawful.

39.      Up till now these appeals have always been listed for an oral hearing.  In some cases that proves beneficial but in a significant number of appeals the Appellant does not appear and is not represented.  It seems to us that the time has come for the Tribunal to consider a change of practice.

40.      We want to make it clear that operators are entitled to insist on an oral hearing as of right.  Where an operator wishes to have an oral hearing the Tribunal will endeavour to expedite the hearing, though it cannot promise that this will always result a significant saving of time.  However there is another option open to any Appellant who is content not to have an oral hearing.

41.      This option arises because of the provisions of Rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008.  Rule 34(1) provides that: “subject to paragraph (2) the Upper Tribunal may make any decision without a hearing”.  Rule 34(2) requires the Tribunal to have regard to any view expressed by a party before proceeding to consider any matter without a hearing, hence the fact that we have made it clear that Appellants are entitled to an oral hearing if they want one.

42.      As from the publication of this decision the Tribunal will be prepared to determine appeals against a refusal to disregard the automatic determination of a licence without a hearing, provided that the Appellant in question agrees to that course.  In that situation the appeal bundle, once completed, will be sent to a Judicial Member and two Specialist Members of the Tribunal.  Once they have read the appeal bundle a telephone conference will be arranged to enable all three Tribunal Members to discuss the matter together and reach a decision.  The decision and the written reasons for the decision will then be sent to the Appellant and the Traffic Commissioner in the usual way.  It is hoped that proceeding in this way will result in a saving of several weeks.

 

 

 

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

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

31 January 2014