Neutral Citation Number: [2009] UKUT 276 (AAC)
Appeal No.  2009/505
IN THE UPPER TRIBUNAL		
ADMINISTRATIVE APPEALS CHAMBER
TRAFFIC COMMISSIONER APPEALS

ON APPEAL FROM THE DECISION OF
Mr Richard Turfitt TRAFFIC COMMISSIONER for the 
EASTERN TRAFFIC AREA Dated 4 September 2009

Before:
Judge Frances Burton
Leslie Milliken
David Yeomans

Appellant:
THE RACING BUG LIMITED

	 
Attendances:
For the Appellant:  Martin Rutherford

Heard at:	Victory House
Date of hearing:	13 November 2009
Date of decision:	9 December 2009

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 dated 4 September 2009 of the Traffic Commissioner for the Eastern Traffic Area when he declined to accept late payment for continuation fees in respect of the Appellant Company’s restricted licence.
2.	The factual background appears from the documents and the written decision of the Traffic Commissioner and is as follows.
(i)	The restricted licence was granted with effect from 5 August 2008 subject to a condition that the operator should provide standard evidence of financial standing over a 3 month period from November 2008 to January 2009. It appears that the Appellant company had not complied with this condition as bank summary sheets rather than full bank statements had been supplied for November 2008 to January 2009 and from June 2009 to July 2009. The operator had written to the Traffic Area Office on 26 August 2009 advising that the application for a licence had been made in advance of need, prior to purchasing a vehicle; vehicle registration number X344 AVR was then specified on the licence on 18 June 2009. In the meantime no continuation request had been received by 31 July 2009 and as a result of non payment of continuation fees a letter of 21 August 2009 had confirmed termination of the licence automatically upon expiry of the deadline of 31 July 2009 under the provisions of s.45(4) of the Goods Vehicle (Licensing of Operators) Act 1995.
(ii)	It was clear that the standard letter notifying the amount to pay (£16), and warning of termination of the licence in default by the deadline, had been sent on 1 July 2009, but apparently was not received. On 24 August 2009 the operator had written to the Traffic Area Office stating that the company had no knowledge of outstanding fees and suggesting the reminder must have gone astray. The operator accepted responsibility for not noticing that the relevant disc expired on 31 July 2009 but requested that late payment be accepted as the business was new, employed 4 persons and the attendant pressures of those circumstances had been exacerbated by personal family pressures. The request was referred to the Traffic Commissioner who, relying on the Transport Tribunal Decision in David Collingwood 2008/569, determined that there was no need for any reminder, relied on the objectivity of the test to be applied in finding exceptional circumstances for accepting late payment (set out in 2006/385 Hansen and 2006/361 Sew-it-all) and declined the late payment, despite the recommendations of relevant staff of the Traffic Area Office that, as this was the operator’s first renewal and the vehicle had only been specified for one month, the Appellant company should be given the benefit of the doubt.
3.	At the hearing of the appeal the Appellant company was represented by Mr Martin Rutherford, Director, who had sent in helpful written representations in advance of the hearing, including a supporting letter from his father, Mr R.J. Rutherford who accompanied him at the hearing.
4.	Mr Martin Rutherford highlighted the key points in his written representations, which set out his efforts to comply with the legislation, his contact and excellent relationship with Mr Simon Phillips of VOSA who had given him extensive compliance advice, the history of his licence (including the fact that he had only just received his first disc in the same month of July 2009 when he had failed to notice that it would almost immediately expire) and that the continuation fee was only £16 and the payment 21 days late. He added that he could not understand why the Traffic Commissioner had stated in his Decision that the operator had “failed to appreciate the importance of the requirement of the licensing system, the potential consequences for its business and where the onus lies” and questioned his attitude in subjective comments, when he had stated he was guided by the objective test for exceptional circumstances. 
5.	Mr Rutherford concluded that this must have been as the Traffic Commissioner had not been given the full text of his letter which had stated that he realised he should have noticed or recalled that the disc he had been issued in July 2009 expired on 31st of that month, that he regretted that “this one issue” had slipped through the net, that he was committed to paying all his bills on time and “holding all relevant licences and permits”, that he did “sincerely apologise” and that the time and cost to reapply would “quite simply cripple and terminate” the business, the impact of which he could not overstate. He pointed out that 2 team leaders and 1 senior team leader had recognised the exceptional circumstances and, highlighting the proximity of the initial payment and disc issue to the continuation date, had considered those circumstances “exceptional”, particularly in the light of the family pressures of his wife’s pending pregnancy.
6.	We accept Mr Rutherford’s submissions and consider that the key factor was the understandable confusion of a new operator, who had done everything he could to comply, when he failed to appreciate that the disc he had just received, in return for a payment he had just made, required a further payment in the same month. Mr Rutherford’s case was extremely well prepared and delivered before us and we are convinced that but for the pressures of the new business (set up following his redundancy), his wife’s pregnancy and the fact that only 2 weeks before he had received his new operator’s visit from VOSA (from which a very positive relationship with his local office had emerged) he was the sort of operator who, anxious to get every detail right, would have renewed on time. We consider it was an understandable mistake to make and his business should not be put under threat by requiring him to reapply for a licence all over again, despite the Traffic Commissioner’s indication that he would give priority to such an application for an interim licence. We also noted that the fact that Mr Rutherford appears to have submitted bank summary sheets instead of full bank statements indicates his attention to detail in that he says he would have sent full statements if he had been asked for those showing individual transaction history. He appeared to us an exact and conscientious young man who is keen to provide the Traffic Commissioner and VOSA with the full compliance required and that the omission to pay a second fee within a month was truly exceptional.
7.	We allow the appeal.

 Judge Frances Burton
9 December 2009