There is no doubt, the leisure sector has been one of the hardest hit as a result of the coronavirus (covid19) pandemic. Licensed venues were some of the first venues to be closed by the Government and although financial help and assistance was announced by the Government, this is not as straight forward as it may appear.
For example, the Morning Advertiser reported that pubs with rateable value above £51k are being penalised under the schemes. In the meantime however, licensing authority fees remains payable and there is very little statutory discretion.
If you benefit from an issued premises licence, you are under a statutory duty to pay an annual fee on the anniversary of your premises licence’s issue date. Whilst the Government has issued a number of changes to legislation through the Coronavirus Act 2020, licensing fees were not include and so the requirements prior to the mandatory closure remained unchanged.
This is as follows:
- The statutory annual fee remains payable in accordance with The Licensing Act 2003 (Fees) Regulations 2005; and
- Under section 55A of the Licensing Act 2003: “A licensing authority must suspend a premises licence if the holder of the licence has failed to pay the authority an annual fee that has become due…”
From the above, it is clear therefore that there is a duty on a licensing authority to act if a licence holder(s) fail to pay the statutory fee.
In practical terms, a suspension of a premises licence will have no practical implication for venues subject to the mandatory closure order. However, some licence holders may wish to avoid this. Unfortunately, the approaches taken by licensing authorities in this varies which is unhelpful for licence holders.
Recently published guidance from the Local Government Association (LGA), encouraged a pragmatic approach stating:
“Councils should consider how to respond to non-payment or late payment of an annual premises licence fee. Whilst legislation requires licences to be suspended (LA 2003) or revoked in the case of the Gambling Act 2005 (GA 2005), it is possible to delay when that suspension takes effect. The Home Office has encouraged councils to consider this approach, councils may want to consider whether to adopt a similar approach for gambling premises too.”
We would encourage licence holders to contact their licensing authority in the first instance to discuss any difficulties with payments of annual fees.
Application fees are more complicated because there is much less discretion in law.
The primary legislation and subordinate regulations prescribe that a fee is payable and what that fee should be. There is no provision in law that could provide any discretion over the payment of application fees.
For this reason, it is very unlikely that any licensing authority will disapply or reduce an application fee.
The need for making applications during this time will be reduced and therefore the issue of application fees will be less of an issue for licence holders.
Likewise, there are no statutory provisions for refunds of licence fees – whether these are application fees of annual fees.
During a time when local authority income will be affected, it is not expected that many local authorities will take a pragmatic approach on refunds of licensing fees.
The LGA guidance referred to above states, in relation to refunds:
“Councils should only issue refunds if they have the legal and financial ability to do so. It is not clear that there are legislative provisions enabling councils to provide refunds to licensees that wish to retain their licences and councils may not feel they are in a financial position to do so, particularly given costs will already have been incurred in relation to different licences.”
Are there any options available?
Ultimately, the interpretation of law and any discretion that may be interpreted will in the first instance rest with the licensing authority. Licence holders are encouraged to speak to their local authority in the first instance.
There is some discretion that can be applied and there is a general expectation that where there is any room for discretion that, in this case licensing authorities, should apply the discretion and be pragmatic about matters. For example, there could be discretion to defer annual fee payments or consider split payments where fees are paid over a period of time rather than in one single payment.
It is worth bearing in mind however, that any decision of a licensing authority is legally challengeable including licence suspensions and refusals. If you are facing a legal issue with you premises licence during this time, please contact us for specialist licensing advice.
Regulatory defence barrister specialising in alcohol and entertainment licensing law, appeals and defence.
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Licensing Defence Barristers are leading licensing barristers dealing with all legag matters relating to alcohol, entertainment and late-night licences.