Neutral Citation Number:  [2010] UKUT 255 (AAC)
                                                 Appeal No. T/2010/37 

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of 
Miles Dorrington  Deputy Traffic Commissioner for the 
South Eastern and Metropolitan Traffic Area Dated 27 April 2010

Before:
Frances Burton, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
George Inch, Member of the Upper Tribunal

Appellant:                            SE MAINTENANCE LIMITED

	 
Attendances:
For the Appellant:                  Ralph Sheridan

Heard at:	     Victory House, Kingsway, London WC2B 6EX
Date of hearing:	     14 June 2010
Date of decision:	     13 July 2010

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be ALLOWED

	                           REASONS FOR DECISION

1.	This was an appeal against the Decision of the Deputy Traffic Commissioner for the South Eastern and Metropolitan Traffic Area dated 27 April 2010 when he determined that there were no exceptional circumstances within the meaning of s 45(4) of the Goods Vehicle (Licensing of Operators) Act 1995 which justified acceptance of late payment of the 5 year continuation fee due by 31 January 2010.

2.	The factual background appears from the documents and Decision letter of the Office of the Traffic Commissioner dated 28 April 2010 and is as follows.

(i)	The Appellant company had, since February 2005, held a Restricted Operator’s licence authorising 2 vehicles and no trailers, with an operating centre at 3 Durham Wharf, Riverside, Charlton, London SE7 7SS, and a correspondence address at The Gateway, 2A Rathmore Road, Charlton, London SE7 7QW. On 30 December 2009 the Office of the Traffic Commissioner (ie the Central Licensing Unit) at Leeds wrote to the operator, requesting payment in a 10 page document and enclosing (a) “a checklist containing details of your licence” , (b) “a request for current financial information” and (c) “details of the fee you need to pay to keep your licence in force”.  The communication comprised 10 separate pages containing a significant amount of information which the operator would have to work through and act upon in order to comply with all the requests.  Page 1 stated “To keep your licence in force you must pay the fee no later than 31/1/2010. Failure to do so will result in your licence terminating …” and continued “As well as informing you about the need to pay your licence fee we are taking the opportunity to remind you of the details we have about your licence so that you can see that they are up to date.  Any changes could affect the fee that you will have to pay”.  A further paragraph required the operator to “read all the information on the checklist and indicate any changes that have taken place, or where the information is incorrect” and to “complete the section requiring up to date financial information”.  Then the operator was required to return “the whole document” together with the required fee to the address given in Leeds.  Further advice was given “to pay by 17/1/2010, which is 2 weeks before the deadline”, which was said to be “to give us time to issue your licence documentation  before the existing documents “expire” “. At the bottom of the page, in a box, appeared the further statement, in block capitals “NO REMINDER WILL BE SENT”.
(ii)	On page 2 it was stated that “The vehicle fee is calculated differently from in the past and is part of a significant policy change. This is the removal of the vehicle fee and the transfer of the income generation associated with this fee so that it is collected as part of the testing fee. The intention is to phase delivery of this change over 2 years.  The fee below represents phase 1; phase 2 is planned for April 2010, with the result that the vehicle related fee is abolished”.  There then followed a breakdown of a total fee of £399, comprising £391 plus £2 for each of 2 vehicles (the number of vehicles which the office surmised the operator still retained) to cover the 2 months till 31 March 2010, ie a further £8, and noted that the fee of £391 covered the period to 31/3/2010. A further statement that “No reminder will be sent” appeared within the text, this time in bold font, and was within further text, also in bold font.
(iii)	Page 3 comprised instructions on how to pay. Pages 4-9 comprised a lengthy licence checklist and page 10 a declaration to be signed by the operator.  On page 7 the operator was to give details confirming the required financial standing, which depended for accuracy on the operator’s confirmation of other detail in the licence checklist.
(iv)	In the event it appears that the Appellant did not receive this lengthy communication as on 1 April 2010 an email was sent by Ralph Sheridan to the case worker at Leeds, recording that he had spoken to another case worker “within the last hour” and, having been passed through other hands, had been advised to write the email confirming that the operator company had not received the request for payment and had in fact written to VOSA in an “earlier letter” asking for “re-instatement” (a letter which it appeared that VOSA had not received).  Further emails were exchanged during the month of April 2010, culminating in a referral to the Deputy Traffic Commissioner for a decision as to whether late payment could be accepted, following automatic termination of the licence on 31 January 2010 when the continuation fee had not been received.  The documentation prepared for referral to the Deputy Traffic Commissioner by the same caseworker who had received the email of 1 April 2010 stated “The operator opted to pay fees on a 5 yearly basis.  A 5 year checklist was issued to the operator on30/12/2009, this gave details of all fees due…There is no history of any compliance episodes on this licence …” and reference was made to the operator’s suggestion in the email of 1 April 2010 to “extreme postal strikes” and “disruption in December”.   However, while also referring to the possibility that “the operator may not have received  the checklist” the documentation also continued  “there were 2 vehicles specified on the licence which would have had discs clearly stating the expiry date” and “it’s the operator’s responsibility to make sure fees are paid, in the light of this, I recommend that the licence remains terminated as no exceptional circumstances have been noted”.  To this another member of staff, passing the case to the Deputy Traffic Commissioner, added “It has taken the operator over 2 months to note the out of date discs, which suggests that their approach to operator licensing is less than diligent”.  The Deputy Traffic Commissioner then noted on the file “I agree. No exceptional circumstances are present”.

3.	At the hearing of the appeal the Appellant company was represented by Ralph Sheridan, its Transport Manager, who submitted that the present case was not one of failure to receive a reminder  of fee payment required, on which both the Tribunal and operators are now well aware that there is much established authority that the legislation requires no reminders to be sent of fee payments due and requested. It was Mr Sheridan’s case that the operator in the present circumstances had not even received the payment request, without which the Appellant company “had no idea of the amount of the 5 year fee”. We noted that the email sent by Mr Sheridan on 1 April 2010, confirming his earlier attempts to contact someone about the licence, had mentioned that without the communication of 30 December 2009 the Appellant company would not know how much to pay.

      4.	     Mr Sheridan had also sent in to us prior to the hearing a copy of the
                Appellant company’s 5 year licence granted on 10 February 2005. 
                This document clearly indicated a review date of 10 February 2010.  
                He had also sent a copy of a 1 page notice from VOSA inviting
                operators to use a new online service instead of “filling in forms to
                update your vehicle list”.  As a result, he submitted, it was not
                unreasonable for him to expect some communication from some
                office or other  about paying a 5 year renewal fee before the 
                Appellant company’s licence was automatically terminated.  

5.	      We agreed with Mr Sheridan’s submissions. There have been
           significant changes in operator licensing in the past 5 years and the
           lengthy document requesting payment of the Appellant company’s
           5 yearly renewal fee imparts another.  The Appellant company also 
           had in its possession a licence document, signed by the then Traffic
           Commissioner for SEMTA, indicating a “Review date” of “10 
           February 2010” (“and at 5 yearly intervals thereafter”).  It appears to
           us not unreasonable that, on the basis that it had not received the
           communication of 30 December 2009, which required some input
           from the operator, as well as informing him of the fee payable,
           the Appellant company would not have had any urgency to act until
           the due date of renewal of 10 February 2010. It was not until the 
           premature termination of the licence on 31 January 2010 that the
           Appellant company had the need to chase VOSA about the issue. 
           Both the premature termination of the licence and the changes in
           licensing arrangements since 2005 have apparently created some
           confusion in the case of this Appellant, which in our view do 
           establish “exceptional circumstances” such that the late payment 
           should have been accepted. 

6.	     We therefore allow the appeal.

                                                                  Frances Burton
                                                                  Judge of the Upper Tribunal
                                                                  13 July 2010