The Institute of Licensing (IoL) have issued updated licensing guidance. This shows how boroughs can help premises that can’t afford to pay their annual licence and late-night levy fees due to the coronavirus lockdown.
- If a business can’t afford to pay their annual licence or late-night levy fee, due to the coronavirus pandemic, they should notify their council.
- The borough can use their discretion to defer the suspension of the licence to ‘some point in the distant future’, allowing the business time to recover.
- It is a convoluted mechanism – and will need a clear explanation to licensed premises – but it does exist.
- It was set out by Home Office Minister Kit Malthouse in a letter to Local Authority Chairs of Licensing on 8 April
ACTION: You may wish to alert licensed premises that:
- if they cannot afford to pay their licence or levy fee due to the coronavirus pandemic, they should notify their council ASAP
- they should also request that, as per the guidance from Home Officer Minister Kit Malthouse of 8 April, the council defers suspension of their licence to a point in the future where they are confident they will have been able to pay their licence/levy fee.
FYI – Amy wrote to boroughs on 31 March asking them to suspend licence and levy fees for 12 months, to match the business rates holiday for retail hospitality and leisure businesses.
Here is the relevant section from the IoL Guidance:
Fees & Late Night Levy
- During this period many licence holders will be generating no, or only a greatly reduced, income. Some Licensing Authorities will wish to consider the further economic impact on these operators that may result from the enforcement of the mandatory requirement to suspend a premises licence if a licence holder fails to pay their annual premises licence fee or, where applicable, late-night levy (imposed by s.55A(1) of the Licensing Act 2003).
- In his Ministerial letter of 8 April, Kit Malthouse MP advised: “Local authorities have discretion when considering non-payment or late payment of an annual premises licence fee or a late-night levy charge. While section 55A of the Licensing Act 2003 requires that the licence be suspended, it is possible to delay when that suspension takes effect. Where businesses are experiencing difficulties, I would expect them to make their licensing authority aware. The authority should consider delaying any suspension of the licence where the delay in payment or non-payment is related to COVID19.”
- Since the legislation imposes a statutory duty on a local authority, it would be preferable for new legislative provisions to be introduced providing Licensing Authorities with a clear discretion not to have to suspend licences due to non-payment of fees or the levy or to waive these fees altogether in appropriate cases. However, the Institute believes that the current legal position already permits Licensing Authorities to delay the start date of the mandatory suspension of a premises licence for non-payment of fees by virtue of s.55A(3) of the Licensing Act 2003 which provides: “If a licensing authority suspends a premises licence … the authority must give the holder of the licence notice to that effect, specifying the day the suspension takes effect.”
- The date on that notice, indicating when the suspension takes effect, may be set at some distant point in the future. This will permit those fees to be paid once the emergency period is over and operators have begun to recover from the financial impact of the closure provisions. No enforcement action needs to be taken in the meantime.
- The Institute understands that some Licensing Authorities may wish to terminate the late-night levy to give immediate financial relief to businesses. There is no power to terminate the late-night levy until the end of the levy period (i.e. when the levy year has expired). Therefore we recommend that where appropriate, Licensing Authorities take the same approach to the collection of the late-night levy as to annual premises licence fees.
- At the end of the levy period, the decision to terminate the levy will usually be taken by the full Council Meeting. However, Licensing Authorities will need to carefully consider the Scheme of Delegation within their own Constitution to establish whether this power can be delegated to an officer.