Neutral Citation Number: [2013] UKUT 010 (AAC)		Appeal No.  T/2012/65

IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL from the DECISION of
Sarah Bell, Traffic Commissioner for the 
Western Traffic Area dated 19 September 2012

Before:
Her Honour Judge J Beech, Judge of the Upper Tribunal
Leslie Milliken, Member of the Upper Tribunal
Stuart James, Member of the Upper Tribunal

Appellant:

CLAREMONT MARQUEES LIMITED

Attendances:
For the Appellant: No appearance 

Heard at: Victory House, 30-34 Kingsway, London, WC2B 6EX
Date of hearing: 11 December 2012
Date of decision:  8 January 2013

DECISION OF THE UPPER TRIBUNAL

IT IS HEREBY ORDERED that this appeal be DISMISSED

SUBJECT MATTER:-  Late payment of renewal fee.  Exceptional circumstances.

CASES REFERRED TO:- Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.

REASONS FOR DECISION

1.	This was an appeal from the decision of the Traffic Commissioner for the Western Traffic Area made on 19 September 2011 when she refused to accept late payment of the Appellant’s licence continuation fee under s.45(4) of the Goods Vehicles (Licensing of Operators) Act 1995 (“the Act”).

2.	The factual background appears from the documents and the decision letter and is as follows:

(i)	The Appellant was granted a restricted licence authorising two vehicles in September 2007.  The Appellant has two vehicles in possession.  The directors of the Appellant company are Willliam Pratt and Julia Pratt.
(ii)	By a letter dated 25 July 2012, the Office of the Traffic Commissioner (“OTC”) informed the Appellant that the licence continuation fee of £397 was due and the letter warned that if the fee and associated check list were not received by 31 August 2012, the licence would be terminated.
(iii)	The Central Licensing Unit (“CLU”) received the licence renewal checklist dated 30 August 2012 along with a cheque for £397 on 5 September 2012.  No explanation for late payment was enclosed.  As a result, by letter dated 11 September 2012, the Appellant was informed that its licence had been terminated.   Mrs Pratt also received a telephone call from the OTC that morning.  As a result, Mrs Pratt emailed the CLU with her explanation for the late payment which was as follows: 
“I only realised that our payment was late last week as I have been ill and in bed since the end of July with a re-occuring viral infection
I tried to call the office to pay and I also went online and tried to pay online – both without success – no-one picked up the phone and I couldn’t get through to the correct part of the webpage to pay online – so I sent a cheque
Being ill at this time was extremely poor timing as it was our busiest time of the year! My husband has been rushed off his feet keeping the business going and not had any time to “man” the office
I have kept up with our customers letters and quotes, loading lists and ordering by doing bits and pieces whenever I could – coming down from my bed and then going back to it when I was exhausted
I only got to the bills last week after I had caught up with the letters etc and that’s when I found your bill
I am so sorry that the payment was a few days later and do hope that you will not revoke our license (sic)
We can put a direct debit in place to cover any future payments due”
(iv)	On 19 September 2012, the Traffic Commissioner refused the Appellant’s application under s.45(4) of the Act.  Her reasons were as follows:
There are two directors Mr & Mrs Pratt.  Mrs Pratt is also the Company Secretary.  Mrs Pratt tells me that she was very unwell at the time.  Mr Pratt was working operationally and she was trying to keep up with the office work “as and when”.  In prioritising that work she chose to deal with the matters for commercial gain first and “bills” last.  A “system” such as it was is fraught with risk.  The steps taken subsequently to try and pay are, at best, inadequate ..
As an aside I note that during this very busy period with both vehicles on the road the drivers appear not to have noticed expired vehicle discs on their walk round check and neither did Mr Pratt.
Illness is not an unforeseen event as it can happen at any time.  The operator did not have a system to ensure important regulatory matters were addressed in such an event, only a set up to ensure that the commercial parts of the business i.e. customer satisfaction were met.
Accordingly, I find no exceptional circumstances and it is entirely right that the company should be put to the time and expense of applying again.  It will focus the directors attention on where priorities should lie...”

3.	The Appellant appealed to this Tribunal but did not appear at the appeal hearing.  Neither was there a request for the Tribunal to hear the appeal in the Appellant’s absence.  On the morning of the appeal, the Tribunal adjourned the hearing to the end of our appeal list and at 4pm determined the appeal in the Appellant’s absence.   The Appellant’s grounds of appeal repeat the submissions made to the Traffic Commissioner save for the following additional points: that when Mrs Pratt repeatedly called the CLU, she was unable to “get through to the right department” and could not find where to pay online and so decided to send a cheque by first class post, which was posted prior to 2pm on 30 August 2012.  She had therefore done all in her power but had been let down by the postal and computer systems of the CLU.  As a result of her illness, she had only enough energy to keep up with the wages, orders and phone calls and as a result had failed to pick up and pay the licence fee earlier than she did.  
4.	The Tribunal cannot find fault with the Traffic Commissioner’s analysis of the position with regard to the late payment of the Appellant’s continuation fee.  The Appellant should have had systems in place to ensure that important regulatory requirements were dealt with and within the stipulated time.  This clearly was not the case.  As a result of Mrs Pratt’s illness which she had endured for most of the company’s trading season, she had been unable to keep on top of the administrative and regulatory matters that needed to be dealt with and this must have been known to Mr Pratt.  Even if systems had not been place before Mrs Pratt’s illness, once it became apparent that her ill health was not transitory, then steps should have been taken at that stage in order to ensure that her work was covered.  We cannot find that reason and law impelled us to take a different view from that of the Traffic Commissioner (as per the test enunciated by the Court of Appeal in the case of Bradley Fold Travel Ltd and Peter Wright v Secretary of State for Transport (2010) EWCA Civ 695.  The Appellant must make a fresh application for a licence and apply for an interim licence.
5.	In the result, the appeal is dismissed. 

Her Honour Judge J Beech
8 January 2013