report to licensing committee · mercedes vito taxi. 8. a report to this committee on 22nd november...

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8.

REPORT TO LICENSING COMMITTEE

DATE 20th March 2014

PORTFOLIO Environment

REPORT AUTHOR Peter Henderson

TEL NO 01282 425011 ext 7262

EMAIL [email protected]

Amendments to Hackney Carriage Conditions of Fitness Policy (incorporating Age Limits for Hackney Vehicles)

PURPOSE

1.

For Members to consider amendments to the Council‟s Hackney Carriage Conditions of Fitness Policy and to the Hackney Carriage Age Limits Policy

RECOMMENDATION

2. That the Licensing Committee recommends that Full Council:

Adopt as a Policy document The Burnley Borough Council - Hackney Carriages: Conditions of Fitness (Appendix A), incorporating a revised age limits standard, and a new „exceptional condition‟ criteria for vehicles above the 10 year age limit, and

Delete the 3 strikes Policy

REASONS FOR RECOMMENDATION

3. To determine an appropriate choice of vehicles suitable for use on the hackney fleet.

SUMMARY OF KEY POINTS

4 Report History

The report was first brought before Members of Licensing Committee on December 5th 2013 where the following recommendation to Full Council was made at Minute 33: That the Licensing Committee recommends that Full Council:-

(1) Adopt as a Policy document, from 1st January 2014, The Burnley Borough Council - Hackney Carriages: Conditions of Fitness (Appendix A), incorporating a revised age limits standard, and a new „exceptional condition‟ criteria for vehicles above the 10 year age limit;


but with the first sentence of Appendix A Paragraph 3a amended so as to read “The vehicle must be less than 3 years old from date of first registration when it is first licenced, except where the vehicle meets the immediate previous Euro emission standard at condition 12a where the maximum age will be increased to 5 years old”;

(2) Delete the 3 strikes Policy.

5. The matter was due to be determined at Full Council on December 18th but was withdrawn

from the agenda pending further discussion with the trade representatives. That consultation meeting took place in January, and a note is attached at Appendix D. At the meeting representatives from the hackney trade were eager to caution members against opening up the market to such an extent that problems with oversaturation may arise and lead to ranking issues and put existing drivers out of business. The private hire trade pressed for an opening up of the market where vehicle age limits were aligned with current private hire limits for wheelchair-accessible vehicles. They urged this move to reduce initial investment costs and increase competition.

6. Having taken the trade issues into account the matter is now back before Licensing Committee for final agreement on a recommendation to Full Council. One amendment has been incorporated into the report presented to the December Committee. This restates the Council‟s existing policy at 13c that the body colour is black.

7. Current Policy. Council policy requires that Hackney Carriages licenced in the Borough meet the design criteria specified by the Metropolitan Conditions of Fitness (CoF). These are determined by Transport for London (TfL), formally, the Public Carriage Officer (PCO), which acts as the Licensing Authority in London for taxis. This means that entry on the hackney fleet in Burnley is restricted to just two vehicles, the traditional London Taxi TX vehicles and the Mercedes Vito Taxi.

8. A report to this Committee on 22nd November 2012 explained that Manganese Bronze Holdings, the Company that manufactured the bespoke London taxi vehicles had, on 22 October 2012, gone into administration. In light of that a decision was made to suspend the upper age limit for hackney carriages until such time as the current policy could be reviewed. In light of this The Taxi Task Group identified this particular policy as a priority for review within the overarching strategic review that is underway. Since then the Company have been taken over by „Geely UK Ltd‟, who has now resumed production of LTI cabs. A spokesman from the Company has announced new investment of 100 million pounds to assist in the development of new models and dealerships in the UK have re-opened with stocks of new and used vehicles.

9. The Review Process. Over the past months Council Officers have worked closely with elected members and trade representatives, all of whom form the Taxi Task Group. The work of this group has been further enhanced as a result of liaison meetings with members of the Burnley Disabled Peoples Network (now disbanded) and the following issues have been identified within the review:


Whether all or some of the conditions of fitness should form part of a Burnley Hackney Carriage „Conditions of Fitness‟ Vehicle Specification

Whether there are any other additional conditions that should be included in the adoption of a Burnley Hackney Carriage „Conditions of Fitness‟ Vehicle Specification.

Consideration of issues relating to passengers who may have difficulty accessing and egressing vehicles.

Air quality issues (emission standards)

Vehicle Age limits.

Legislative issues

Decision making process for consideration of none approved vehicles

10. In reviewing the fitness for purpose of the current Hackney Carriage Conditions of Fitness Policy the Council must take into consideration the case of R (Lunt and Another) v Liverpool City Council [2009] EWHC 2356 (Admin) which sets a significant precedent in relation to provision for disabled users. The case is outlined at Appendix B.

11. In reviewing the policy relating to vehicle type, consideration needs to be given to those elements of the TfL CoF which are not relevant within the Borough, together with the elements of other Council policies that restrict vehicles coming onto the fleet. These elements have been discussed extensively at the Taxi Task Group.

12. In relation to TfL conditions many are considered justified as a means to maintaining appropriate levels of safety and comfort. However the following proposed relaxations relate to aspects which are not considered necessary within the Borough:

a) The ‘Turning Circle’. The Councils current hackney carriage vehicle policy complies with the TfL CoF that requires a hackney carriage vehicle must be capable of being turned on either lock so as to proceed in the opposite direction without reversing between two vertical parallel planes not more than 8.535 meters apart. The wheel turning circle from kerb to kerb on either lock must not be less than 7.62 meters in diameter. There are currently only two vehicles that can meet the turning circle requirement and fall within the Councils current age limit policy for hackney carriage vehicles i.e. The London Taxi Cab vehicle and the Mercedes Vito Taxi. The turning circle has been an integral part of the TFL CoF for a number of years. It‟s retention in London follows a 2005 review, which justified it‟s inclusion in the CoF In Burnley, there is no evidence to suggest that rapid turning is necessary. It is this particular element that precludes other vehicles coming onto the fleet and it is difficult to see any justification for retaining the turning circle condition in Burnley. This is reflected within the proposal at Appendix A where the requirement is removed.

b) Air Quality and Emission Standards.

The TfL CoF indicates that a vehicle must meet the current and relevant EC Directive for exhaust emissions, i.e. the respective Euro standard (currently 5), although this standard has never been adopted in Burnley.


Hackney carriage vehicle‟s, the majority of which run on diesel are a source of air pollution. Although there are a relatively small number of Hackney Carriages currently licensed in Burnley there is potential for air quality issues where they accumulate on the ranks. This potential is significantly less than in London and a lower standard is considered appropriate. Included in the proposal at Appendix „A‟ is a condition which is less stringent that the London CoF, but does provide emissions standards that would satisfy the needs of the Borough. The proposed condition is worded in such a manner that any improved Euro standard in emissions would be automatically updated in Burnley‟s Policy. The proposed condition indirectly prevents older vehicles (and vehicles refitted with older engines) being licensed as replacement vehicles

13. Burnley’s Local Policy Issues.

a) Age Limit Policy

Burnley‟s current policy states that a vehicle coming onto the fleet for the first time must be under 3 years old and can be licensed until it reaches the age of 12 years from the date of its first registration. It also states that, where a hackney vehicle over three years old is written off as a result of accident damage, the damaged vehicle can be replaced by a vehicle no older than that involved in the accident. It is proposed to retain the provision for replacing written off vehicles and, subject to the following, to retain the minimum 3 year age limit and allow vehicles to be licensed to the age of 10 years. However, it is proposed that flexibility is introduced to lower and upper age limits in specific circumstances :- A vehicle licence will be renewed beyond the age of 10 years, only if it meets the Councils „exceptional condition‟ standard which is detailed in 3a of Appendix „A‟. The „exceptional condition‟ standard allows the vehicle licence to be renewed up to 15 years, or until the exceptional condition is no longer met. The lower age limit will be increased to 4 years in those circumstances where the emissions criteria condition is met. If the proposal is accepted by Members then existing vehicles will continue on the fleet in line with the current 12 year limit, and will have the option of 3 extra years if the exceptional condition is met. 10 years will only apply to vehicles entering the fleet after the new proposal is adopted.

b) 3 Strikes Policy This policy was introduced to improve the condition of the fleet by removing vehicles that were consistently unsafe at formal test. Because pre-testing is now extensively used by applicants there is limited benefit to this policy. Enforcement activity is now focussed on driver responsibility for vehicle condition, and drivers will increasingly appear before Licensing Committee and will be dealt with individually under the „fit and proper person‟ test where they are found to be driving unsafe vehicles. The 3 strikes policy is administratively complex, and so it is proposed to delete this provision for Policy.


14. Eligible Vehicles. Manchester City Council recently undertook a comprehensive review of purpose built hackney vehicle specifications, and their ability to conform to the Conditions of Fitness. Using the information collated through that exercise we believe that should the Council adopt the CoF policy at Appendix „A‟ then the following vehicles would be eligible for admission onto the Burnley fleet: .

A) Traditional LTI black cabs (currently approved in Burnley) B) Mercedes Vito Taxis (currently approved in Burnley) C) Mercedes Benz M8 Hackney. (similar to Vito taxi but without 4 wheel steering) D) Peugeot E7 (SE Model) by Allied Vehicles.

15. The above list of eligible vehicles will be kept under review and revised accordingly when

manufacturers revise the specification of their vehicles. Additionally, and subject to Licensing Committee approval, vehicles not complying with the full standard, but making an exceptional case for inclusion on the list by way of the facility they offer to disabled users, may be added to the fleet. Any person requesting the approval of a new type of vehicle must make their request in writing as per the procedure in Appendix A.

FINANCIAL IMPLICATIONS AND BUDGET PROVISION

16. None

POLICY IMPLICATIONS

17. The adoption of policies is a matter for Full Council, following recommendation by the

Licensing Committee

DETAILS OF CONSULTATION

18. Councillors Cooper, Royle, Fifield and Baker.

Taxi Task Group: The proposals set out in this report were discussed in depth with the Taxi Task Group and those discussions were concluded on 6th November. The Group asked that their comments and/or alternative proposals be considered by the Committee. Their views are detailed in Appendix ‟C‟ which is an agreed extract from the minutes of the meeting held on 6th November.

19. A summary of the recommendations of the various trade representatives made prior to the December 5th Committee is as follows; the Conditions of Fitness (Appendix A) are supported. Their views in relation to age limits at that time were:


Maximum Age

for first registration Maximum Age w/o exceptional condition criteria

Maximum Age where exceptional condition criteria are met

Council Proposal 3 yrs. (5yrs where Euro emission

criteria, condition 12a, is met)

10 years 15 years

Hackney Drivers Assoc. Ltd

4 years for new entrants

6 years for existing drivers

14 years

Hackney Driver Owners

3 years 12 years

Private Hire Operators

4 years 12 years 15 years

Private Hire Association

6 years 14 years

20. Following the matter being withdrawn from the December Full Council an informal trade/Committee meeting took place on January 20th. Appendix D provides a note of the meeting. The trade‟s recommendations have in some cases been revised, and their recommendations at this point are: Maximum Age for

first registration Maximum Age w/o exceptional condition criteria

Maximum Age where exceptional condition criteria are met

Hackney Drivers Assoc. Ltd

3years 15 years

Hackney Driver Owners

3 years 12 years

Private Hire Operators

8 years (wheelchair accessible)

15 years

Private Hire Association

8 years (wheelchair accessible)

15 years

BACKGROUND PAPERS

21 None

FURTHER INFORMATION

PLEASE CONTACT: Peter Henderson Ext 7262

ALSO: Karen Davies Ext 7247


Burnley Borough Council – Proposed Conditions of Fitness

Index to terminology *Dft reference wheelchair – is the standard size set by DfT detailed within their „Public Service Vehicle Accessibility regulations 2000 guidance **Squab – refers to the seat cushion the passenger sits on. The measurement is taken from the centre of the seat cushion outwards into the vehicle to ensure enough distance between facing seats to accommodate a seated person (room for knees)

General construction

1 The vehicle will comply with:

a All respects of the requirements of the Motor Vehicle (Type Approval) Regulations 1980

b The Motor Vehicle (Type Approval) Regulations (Great Britain 1984)

c The Motor Vehicles (EC Type Approval) Regulations 1998 and with any further national or international legislation as may be applicable.

d The Road Vehicles (Construction and Use) Regulations 1986 (C & U).

e All respects of British and European vehicle regulations and be “type approved” to the requirements of the M1 category of European Whole Type Approval Directive 2007/46/EC as amended.

f Note: If a vehicle has not been “type approved” to the M1 category (e.g. conversions) approved certification must be provided that confirming that the specific vehicle meets the requirements of that category

2 Wheelchair Accessibility

The vehicle must be able to facilitate the carriage of disabled persons and of accommodating a disabled person in a *DfT reference wheelchair in the passenger compartment

3 Maximum Age of Vehicles

a The vehicle must be less than 3 years old from date of first registration when it is first licenced, except where the vehicle meets the immediate previous Euro emission standard at condition 12a where the maximum age will be increased to 4 years old. A vehicle licence will not be renewed for a vehicle between 10 and 15 years old, from date of first registration, unless it continues to meet the „exceptional condition criteria‟ i.e.

1. Any vehicle inspection resulting in a fail due to 2 major faults or more than 4 minor faults will usually result in the vehicle no longer being classed as in exceptional condition upon expiry of the licence. It will not be acceptable for such a vehicle to be taken away, repaired and represented for a further test. Any further application will not be accepted for such a vehicle. „Major faults‟ are defined as any brake, steering, tyre or suspension defects. „Minor faults‟ are defined as all other defects that are not classed as „Major faults.


2. The bodywork should be in good condition with little sign of panel age deterioration, dents, scratches, stone chips or rust or any other abrasions that may detract from the overall appearance of the vehicle.

3. The general paint condition should show little sign of fading; discolouration or mismatching that may detract from the overall appearance of the vehicle.

4. The interior trim, panels, seating and carpets etc. should be in good condition clean, free of damage.

5. The vehicle to be in good mechanical condition and in all respects safe and roadworthy with no signs of corrosion to the mechanical parts, chassis, underside or body work.

6. The boot or luggage compartment to be in good condition, clean and undamaged.

7. Passenger areas to be free from damp or any other odours that may cause passenger discomfort.

4 Steering

a The steering wheel must be on the offside of the vehicle

5 Modifications/Additional Equipment

a No equipment and or fittings, other than those approved may be attached to, or carried on the inside or outside of, the vehicle

b No modifications may be carried out to the vehicle without prior written approval of the Council. Written proposals for any vehicle modification should include appropriate information from the vehicle manufacturer that the modification can be accomplished without compromising the vehicle specification.

7 Tyres

a Vehicles must have tyres that comply with the relevant legislation Specifically, re-tread tyres must comply with BS AU 144E as amended and be marked accordingly.

b Tyres should be of the designated size, speed and weight rating for that make and model of vehicle as prescribed by the vehicle manufacturer.

8 Brakes

a The vehicle must have an anti-lock braking system fitted.

9 Interior Lighting

a The vehicle must be fitted with adequate lighting for the driver and passengers

b The vehicle must be fitted with separate lighting controls for both passenger and driver.

c The vehicle passenger compartment will have an illuminated control switch fitted, which is within reach of wheel chair passengers

d The vehicle should have lighting provided at floor level to each passenger door, which is activated by the opening of the Doors


10 Electrical Equipment

a Any additional electrical installation and/or after-market components, used within the vehicle, must meet the requirements of the relevant Automotive Electro Magnetic Compatibility (EMC) Directive, as amended, and be marked accordingly.

11 Fuel Systems

a The vehicle must have a device provided whereby the supply of fuel to the engine may be immediately cut off.

b If a manually operated device is fitted, the location together with the means of operation and “off” position must be clearly marked on the outside of the vehicle? In the case of a vehicle fitted with an automatic inertia fuel cut off switch, no markings are required.

c Where the engine is powered by liquid petroleum gas (LPG), compressed natural gas (CNG), liquid natural gas (LNG), petrol or any combination of these fuels, the vehicle must be fitted with an automatic inertia fuel cut off device.

d The vehicle must have a manually operated fuel cut off device externally mounted which is easily visible and readily accessible at all times from the outside of the vehicle with its location and means of operation clearly marked

e Where a conversion to LPG has been undertaken „post‟ manufacturing the Council will only licence such vehicles where the applicant is able to produce an LP Gas Association Conversion Certificate in relation to the vehicle. (photo copies will not be accepted) In all cases any certificate of insurance produced in support of an application must indicate that the vehicle is insured to run on LPG.

12 Exhaust Emission Standards

a When a vehicle is first licensed (including a replacement vehicle) it is expected to meet (and maintain) the current or immediate previous Euro emission standard. This standard must be maintained throughout the period that the specified vehicle is licensed.

13 Body

a The body must be on the fixed head type with a partially glazed partition separating the driver from the passenger

b The overall length must not exceed 5 metres. This is essential for determining the size of taxi ranks, other pickup points and for the free access and flow of other vehicles.

c The body will be solid black in colour.

14 Facilities for the Disabled

a Every taxi must be equipped to approved standards in order that wheelchair passengers may be carried.

b The vehicle must have i. anchorages provided for wheelchair tie downs and the wheelchair passenger restraint ii. anchorages that are either chassis or floor linked and capable of withstanding approved dynamic or static tests iii. anchorage restraints for wheelchair and occupant independent of each other iv. anchorages provided for the safe stowage of a wheelchair when not in use,


whether folded or otherwise, if carried within the passenger compartment v. anchorages and restraints designed so that they do not cause any danger to other passengers

c The door and doorway must be so constructed as to permit an unrestricted opening across the doorway of at least 75cm and have a minimum angle of a hinged door when opened must be 90 degrees

d The clear height of the doorway must not be less than 1.2 metres

e Grab handles must be placed at door entrances to assist the elderly and disabled. All grab handles must be in a contrasting colour.

f The top of the tread for any entrance should normally be at floor level of the passenger compartment and comply with the following requirements: i. be not more than 380mm from the ground, (measured at the centre of the tread width) ii. the surface shall be covered in a slip-resistant material and have a band of colour across the entire width of the edge which shall contrast with the remainder of the tread and floor covering

g Should any entrance be more than 380mm from the ground, an external interim step must be available when the associated passenger door is opened and comply with the following requirements i. not be more than 380mm in height from the ground, (measured at the centre of the step width) ii. be not less than 250mm deep iii. the surface shall be covered in a slip-resistant material iv. have a band of colour across its leading edge which shall contrast with the remainder of the step and floor covering v. not be capable of being operation whist the vehicle is in motion vi. if automatic or powered be fitted with a safety device, which stops the motion of the step if the step is subject to a reactive force not exceeding 150N in any direction if that motion could cause injury to the passenger vii. can fold or retract so that it does not project beyond the side face of the vehicle and the vehicle is not capable of being driven away unless the step is folded or retracted

h The vertical distance between the highest part of the floor and the roof in the passenger compartment must not be less than 1.3m.

i Where seats are placed facing each other, there must be a minimum space of 42.5cm between any part of the front of a seat and any part of any other seat which faces it, ensuring adequate foot room is maintained at floor level

j Where all seats are placed facing to the front of the vehicle, there must be clear space of at least 66cm in front of every part of each **seat squab, measured along a horizontal plane at the centre of the cushion

k A ramp for the loading of a wheelchair and occupant, which is available at all times for use, as a minimum, at the nearside passenger door. The ramp must have a safety lip, be 70cm wide, as a minimum, and comprise a single non-slip surface. It is desirable for this facility to be available at the offside passenger door also. An adequate locking device must be fitted to ensure that the ramp does not slip or tilt when in use. Provision must be made for the ramp to be stowed safely away when not in use.


15 Passenger Comfort

a When fitted, occasional seats must be at least 40cm in width and the distance from the back of the upholstery to the front edge of the seat must not be less than 35.5cm

b Occasional seats must be so constructed as to rise automatically when not in use. They must be spaced at least 4cm apart. When not in use, they must not obstruct doorways.

c Suitable means must be provided to assist persons to rise from the rear seat, with particular attention to the needs of the elderly and disabled.

d The rear seat dimensions must be adequate to carry the appropriate number of adult passengers comfortably

e Lap and diagonal seatbelts must be fitted on all seats (including rear facing seats)

f Head restraints must be fitted to all (forward and rear facing seats. The design of headrests should maximise the rear sightlines of the driver when any of the passenger seats are not occupied.

g An induction loop system (or equivalent) must be fitted.

16 Drivers Compartment

a The driver‟s compartment should be designed so that the driver has adequate room, can easily reach, and promptly operate, the controls.

b Controls should be placed to allow reasonable access to the driver‟s seat, when centrally placed, and be properly protected from contact with luggage

c The vehicle must be provided with an approved means of communication between the passenger and the driver. If a sliding window is fitted on the glazed partition, the maximum width of the opening must not exceed 11.5cm

d Where a single-piece partition is fitted, a facility must be provided for making payment to the driver

e The headrests should maximise rear sightlines for the driver, when any of the passenger seats are not occupied.

17 Driver Visibility

a The vehicle should be fitted with a single piece, full-width, rear window.

18 Passenger Visibility

a The windows should maximise passenger visibility into and out of the vehicle. The top of the window line for front and side windows, when measured vertically to the top of the visible portion of the glass, must not be less than 780mm on any glass panel forward of or beside the seated passenger. The vertical distance is to be measured through the E point as defined in Directive 77/649/EEC, from the top of the uncompressed rear forward facing passenger seat cushion to the first point of totally obscured glass. Manufacturers are to declare conformity to this condition by way of a drawing. The bottom of the window area in the passenger compartment must be available for opening by the seated passenger.

b Windows must permit maximum visibility into and out of the vehicle. They must have a light no more than 25% tint value


c Windows must be capable of being opened easily by passengers, including those in wheelchairs, when seated. The control for opening a window must be clearly identified to prevent being mistaken for any other control

19 Heating and Ventilation

a An adequate heating and ventilation system must be provided for the driver and passengers and means provided for independent control by the driver and the passengers. All switches must be within easy reach of seated passengers, including those in wheelchairs.

20 Door Fittings

a An approved type of automatic door securing device must be fitted to passenger doors to prevent them from being opened when the vehicle is in motion. When the vehicle is stationary the passenger doors must be capable of being readily opened from the inside and outside of the vehicle by one operation of a latch mechanism. The door must not open from the inside if the driver has the foot brake depressed. The interior door handle must be clearly identified to prevent it being mistaken for any other control.

21 Fare Table

a A frame must be provided for the fare table fixed in an approved place.

22 Floor Covering

a The floor of the passenger compartment must be covered with a slip resistant material, which can be easily cleaned. The floor covering must not impede the movement of wheelchairs. The colour of the floor must contrast with any up stand areas around it and with the colour of the seats.

23 Luggage

a Suitable dedicated provision for the secure carriage of luggage should be made, separated from the passenger compartment and proportionate to the number of passengers carried.

24 Taxi Sign

a The vehicle must display a “Taxi” sign, approved by the Council which can be clearly visible both by day and night when the taxi is available for hire.

25 Radio Apparatus

a The vehicle must be suitable for the fitting of radio equipment NB. The equipment fitted must have been approved by the council


APPENDIX ‘B’ R (on the application of (1) Alma Lunt (2) Allied Vehicles Ltd) v Liverpool City Council (Defendant) and Equalities & Human Rights Commission (Intervener) [2009] EWHC 2356 (Admin) Implications for Practitioners Blake J.‟s judgment contains a number of important statements on the scope of the duties on public authorities under ss21B-21E on the Disability Discrimination Act 1995 (DDA), in particular the duty to take reasonable steps to ensure a practice, policy or procedure does not make it impossible or unreasonably difficult for disabled people to receive a benefit intended to be conferred. It also confirms the suitability of judicial review as a means of bringing a direct discrimination claim in an appropriate case, and the relevance of a material error of fact to compliance with the „due regard‟ duty under s49A DDA. The Facts The first claimant, Alma Lunt, is a disability campaigner in Liverpool and a wheelchair-user. Although Mrs Lunt uses taxis regularly, she cannot be secured in a London-style taxi because of the limited space for turning a wheelchair. Liverpool restricts the type of taxis that can be used to London-style „TX‟ type taxis, meaning that she has no choice but to travel in taxis sideways, without a seatbelt, which is both uncomfortable and unsafe. In 2007 the second claimant, „Allied‟, applied to Liverpool City Council for approval of its wheelchair accessible taxi, the „E7‟, which is already licensed as a taxi in most cities in the UK. Mrs Lunt and other disabled people in Liverpool were impressed with the E7, which can securely carry larger wheelchairs with space for more than one ambulant companion, and supported the application. They informed the Council‟s licensing officer about the serious problems they and other wheelchair users faced in using the existing taxis in Liverpool. However, the Council‟s licensing committee refused to approve the E7, relying in part on an equality impact assessment which asserted that the existing fleet of taxis in Liverpool (which is similar to that in London) was already „wheelchair accessible‟. The claimants argued that the decision was unlawful because: (1) the Council had failed to comply with its duty under s21E(2) DDA to take reasonable steps to ensure that its taxi licensing policy did not make it impossible or unreasonably difficult for disabled people to receive the benefit intended to be conferred; and (2) it had failed to discharge its statutory duty under s49A DDA to have due regard to the need to promote equality of opportunity for disabled persons and to encourage their participation in public life. Separately, the claimants argued that the decision was based on a material error of fact, was unfair, and that the defendant‟s taxi licensing policy was contrary to article 28 of the Treaty establishing the European Community (EC) as an unjustified restriction on the free movement of goods. The Decision The judge rejected the defendant‟s argument that the challenge under s21E DDA was unsuitable for judicial review and had to be brought by way of a damages claim in the County Court, for three reasons. First, DDA schedule 3, paragraph 5 preserves a right to apply for judicial review in respect of an act which is unlawful under Part 3 DDA. Second,


comparable race discrimination authorities demonstrate that a challenge can be made by way of judicial review even where there is a factual dispute (R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1 and R(E) v Governing Body of the JFS [2008] EWHC 1535/1536 (Admin)). Third, the factual dispute in this case (about what was said in consultation) did not prevent the challenge proceeding because it was clear that there was documentary evidence before the licensing committee that some wheelchair users could not access London taxis for space reasons and the licensing officer must have seriously misunderstood the issue and should have investigated further. The court could intervene where there had been a procedural failure to explore a relevant question fairly and effectively, or having explored it, a public authority based its decision on a critical factual question that proved to be wrong (E v the Secretary of State [2004] EWCA Civ 49; [2004] QB 1044). Ultimately, the decision fell to be quashed because it was based on a fundamental misunderstanding as to the true factual position: the defendant had erroneously believed that: (1) all of the existing fleet of 1400 London-style taxis in Liverpool was „accessible‟ to all wheelchair users generally; (2) reported problems as to the securing of wheelchairs were exclusively the result of driver error; and (3) it was dealing merely with a wish or preference of wheelchair users for greater choice, rather than something that thwarted their ability to access the benefits provided by the licensing regime altogether. The judge also rejected the defendant‟s argument that it was entitled to conclude that its taxi fleet was accessible to „wheelchair-users as a class‟ to avoid triggering the duty to make adjustments in accordance with s21E DDA. The judge found that the evidence before the licensing committee showed serious difficulties for a class of wheelchair users, of whom some, like Mrs Lunt, could not access a safe and secure position in a London-style taxi at all. It was not necessary to show that there was a denial of access to a benefit for „wheelchair users as a whole...undifferentiated as to the size of the chair or the particular disability that may distinguish one group of wheelchair users from another‟. The factual error was also fatal under s49A DDA, since the true factual position was a mandatory relevant consideration under s49A DDA and at common law: the licensing committee therefore could not lawfully exercise its discretion if it did not properly understand the problem, its degree and extent. Comment The decision confirms the importance of the duties on public authorities under ss21B-21E DDA, including the duty to make reasonable adjustments to any practice, policy or procedure falling within s21E DDA. It is perhaps all the more important given the restrictive approach taken to disability discrimination in London Borough of Lewisham v Malcolm [2008] 1 AC 1399. In setting out the legal principles to be applied, the judge adopted a „six step approach‟ that a public authority should use under ss21B and 21E DDA, and endorsed submissions by the EHRC regarding the importance of access to public transport by people with disabilities if the policies and purposes of the DDA are to be promoted and not frustrated: 1. Did the [authority] have a practice policy or procedure? 2. Did that practice policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is, or may be, conferred by the [authority]? 3. If so, is it under a duty to take such steps as is reasonable in all the circumstances of


the case for it to change that practice policy and procedure so it no longer has that effect? 4. Has the [authority] failed to comply with its duty to take such steps? 5. If so, is the effect of that failure such as to make it unreasonably difficult for Mrs Lunt to access such benefit? 6. If so, can the [authority] show that its failure to comply is justified in that either a. it reasonably holds an opinion that the non-compliance is necessary in order not to endanger the health or safety of any other person; or b. its failure is justified as a proportionate means of achieving another legitimate aim?” Referring to Sedley LJ in Roads v Central Trains [2004] EWCA Civ 1541, the judge confirmed that the duty to make reasonable adjustments to the taxi licensing policy in this case was „not...a minimal duty, but seeks broadly to put the disabled person as far as reasonably practicable in a similar position to the ambulant user of a taxi‟. Separately, the judge found that the refusal to license the E7 taxi was contrary to article 28 EC and observed that the test for justification of a failure to take „reasonable steps‟ under s21D DDA was similar to the strict test applicable under article 28 EC: in this case it would only have been lawful if shown by relevant evidence to have been justified on grounds of public safety, and to be proportionate, i.e. the least restrictive alternative to achieve that legitimate aim. The case will have significant repercussions for the licensing of taxis in cities that still restrict the type of licensed taxis to the London-style taxis (including in London itself) and is likely to be of assistance to disabled people and others campaigning for better access to public transport. More generally, it reinforces the significance of the legal responsibilities on local authorities to consider disabled people and their interests when making decisions that affect them, to ensure that the legislative purpose of the DDA – to ensure substantive equality – is not frustrated. At the time of writing, Liverpool‟s officers had just reported to their licensing committee that it had no real alternative but to license the E7. Mrs Lunt and others in her position are hopeful that the long fought for U-turn in licensing policy is about to take place. APPENDIX ‘C’ Extract from Taxi Task Group Minutes 9th November 2013


4. TAXI TRADE PROPOSALS - AMENDMENTS TO HACKNEY CARRIAGE CONDITIONS OF FITNESS POLICY (INCORPORATING AGE LIMITS FOR HACKNEY VEHICLES)

4.1 The Chair asked the Taxi Trade for their comments:

4.1.1 (The Hackney Drivers‟ Association Ltd) We have grave concerns:

The Council‟s role is to protect the public/provide

reasonable access to vehicles. It is important that

the policies reflect reasonable service at reasonable

cost.

When we look at Burnley, we see queues of

hackneys and private hire vehicles (particularly at

night time).

Is the policy of the Council really working or is there

an issue detrimental to the trade and public? There

is a spiral where hackneys are handing plates in.

A survey shows high risk of total collapse of the

hackney trade in many areas around the country.

The hackney trade in Burnley has not moved on. No

change in policy in relation to hackney vehicles. Is it

right, reasonable, affordable?

Am I representing the best I can for the hackney

trade? The answer is no. The Council is still

restricting the Trade through the backdoor.

To maintain the position, an unmet demand survey

for hackney vehicles is requested to re-introduce

limits on the number of vehicles allowed on the fleet

(currently feel there is an imbalance).

Drivers have to work longer hours with

fatigue/tiredness, which is not good, to make the

same money as 5 years ago. Domestic abuse is

increasing because there is no money coming in.

We want what is good for the Trade as a whole, not

just individuals.

Elected Members, you have a responsibility to the

Trade for proposals to be affordable/ reasonable in

the current pressures. With respect, you do not


currently. Need to consider survey result.

(The Hackney Drivers’ Association Ltd)

Recommendations:

o We ask the Council to undertake an unmet

demand survey and urge the Council to

introduce E7s and further vehicles, to increase

availability for work which cannot be done in

other vehicles.

o Age limits: Agree to allow upgrade for existing

members, for something reasonable, ie, 6 years

with extended conditions. (Existing drivers

cannot afford 4 year vehicles.) Upper limit 14

years. New drivers should have to put on a 4

year old vehicle.

Comments:

o (Councillor Anne Kelly) When did the last survey

take place?

o (Peter Henderson) Around 6 years ago. An in

depth consultation with members of the public

(200 pages). The sweeping generalisations

made are not helpful, need specifics. Since

delimitation the vehicle numbers have levelled

off to the current number just through market

forces. There are no plates being handed in

within Burnley.

o (The Hackney Drivers‟ Association Ltd) Further

things can be done to help provide a service for

my members. Hackney provision is changing.

We need to make sure we have security.

o (Chair) Thought provoking matters for Licensing

Committee to consider when making policy

changes.

o (Elected Members) Agreed, would be of benefit

to Licencing Committee/need to take into

consideration.

o (Karen Davies) We need to have a balanced

overview of the current situation within Burnley


and use reliable evidence and indicators to

inform views.

4.1.2 (Hackney Owners‟ Association) Concerns:

Accept that different vehicles have to be allowed.

If the age limits are changed existing drivers will lose

the money they have invested in vehicles which

meet the current 12 year rules.

Increased number of vehicles on the road/parking

issues. Private Hire operators will licence their

larger vehicles as hackneys which will allow them to

operate as both Private Hire vehicles and use the

ranks/ply for hire legally as hackneys. This will

create significant problems in the town.

(Hackney Owners’ Association)

Recommendations:

o Age Limits: Hackney Owners‟ Association voted

on their preferences: results - 26 signatures

prefer to leave as is, ie, 3 years – 12 years. This

will retain the distinction between hackneys and

Private Hire and protect the investments already

made by current drivers.

4.1.3 (Private Hire Operators) Concerns:

New entrants currently hindered from entering the

trade by high new vehicle costs. Need to open it up.

These high costs impact on the costs of maintaining

vehicles.

(Private Hire Operators) Recommendations:

o Age limits 4 – 10 years (exceptional up to 15

years).

4.1.4 (Private Hire Association) Concerns:

Disagree with Hackney Owners‟ Association

regarding blocked roads/licences. Need to integrate

the trades. We are all doing the same job under

different banners. Private Hire also suffering. We

need to do what is right for the public. Hackneys are

too expensive.


(Private Hire Association) Recommendations:

o Agree with The Hackney Drivers‟ Association

Ltd‟s recommendations, ie, 6 year lower age for

first vehicle but for everyone and 14 year upper

limit.

4.1.5 In summary - Recommendations:

The Hackney Drivers‟ Association Ltd:

4 years (new entrants) – 14 years

6 years (renewal existing) – 14 years

(dual system)

Hackney Owners‟ Association:

3 years – 12 years

Private Hire Association:

6 years – 14 years

Private Hire Operators:

4 years – 12 years, exceptional 15 years

4.2 General comments:

(The Hackney Drivers‟ Association

Ltd): The cost issues for people investing in vehicles has

to be considered.

(Peter Henderson) Pointed out that the Trade‟s concerns

were not about vehicle cost issue, they want to see a

quantity restriction re-imposed at around 30, because this

would protect the hackney trade monopoly.

(The Hackney Drivers‟ Association Ltd) Age limits would

not be an issue. Elected Members to consider if policies

working. We have got to respect the views of officers,

representatives, etc.

(Karen Davies) A report went before Members around 6

years ago, following the last survey. Consideration was

the given to keeping quantity restrictions and Members

decided „no‟. There would now need to be a change in

policy before a survey about setting quantity could take

place, ie, is a quantity restriction appropriate for Burnley?

This would go against current Department for Transport

Best Practice.


(Private Hire Operators) Need to take account of the

current economy. We cannot afford to run 3 year vehicles.

If you expect operators to buy new (er) vehicles, then with

the current income levels, they will only be able to repay

their finance agreements and that the maintenance of

these vehicles will be impacted.

(Chair) The views of the Taxi Trade are currently missing

from the Licencing Committee report. Need to ensure

specific points raised today are put in writing, to go with

the report. Taxi Trade representatives may also attend

Licencing Committee in person to put their „big issues‟

around economies, etc., directly to Members.

(Karen Davies) Why is the Council‟s current proposal not

acceptable as a compromise? It reduces the initial

investment by permitting different (cheaper) types of

vehicles on the fleet and effectively moves the lower age

limit up to 4 years and allows well maintained vehicles to

stay on the fleet beyond 10 years. It seems to do what

most of you are asking for and rewards high levels of

maintenance.

(Hackney Owners‟ Association) Severe cuts/costs will put

people out of business.

(Chair) Divergence of views needs to go to Licensing

Committee.

(Private Hire Association) Elected Members, it is important

to let the market dictate itself. Every job is vital. Give

hackneys a chance to compete. Integrate the two trades.

(Councillor Ida Carmichael) Elected Members need the

background information when the report goes to

Committee, so that they can make an informed decision.


APPENDIX D

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codes.

Private Informal meeting of Licensing Committee and Taxi Trade

BURNLEY TOWN HALL

Monday 20th January 2014

PRESENT

MEMBERS

Councillor Ann Royle in the Chair.

Councillors Margaret Brindle, Ida Carmichael, Jean Cunningham, John Fifield, Gary Frayling, Mathew Isherwood, Anne Kelly, Arif Khan, Tom Porter, Ann Royle and Betsy Stringer.

OFFICERS

David Wilcock Karen Davies Saima Afzaal

- - -

Head of People Law & Regulation Environmental Health & Licensing Manager Assistant Democracy Officer

Amendments to Hackney Carriage Conditions of Fitness Policy

(incorporating Age Limits for Hackney Vehicles)

Comments by Taxi Trade. Khalid Mahmood PH Operator Need to consider alternative vehicles and have an affordable fleet. Current fleet comes on at 3 years old & is being run for 7-8 years. Previously (before lower age limits) a vehicle was brought in older and run for shorter time. Members should look at more affordable vehicles. Age limit reduced. The Council needs to take into account of the current economy. PH cannot afford to run 3 year vehicles & trade cannot expect vehicles brought in older to run for shorter time. Like to see E7, Mercedes benz, vito black cabs & other appropriate M1 specification vehicles. Proposal – Align with age limits for the PH fleet: wheel chair accessible, 8 years until 15 years. For non-wheelchair accessible a lower age limit 6 years and an upper limit of 12 years. Open to a restriction of vehicle numbers, whether survey carried out or not. Charles Goodwill - HC


A move away from the minimum age of 3 years and a 12 year upper limit will see the Town flooded with Hackney Carriages. Up to 300 PHVs could move across to be self-employed hackneys. The streets will be gridlocked, Council Revenue will drop when operators close and taxi ranks will be overflowing Drivers are currently taking £300 per week giving them no profit. The new types of vehicles must be brought on, we accept that. But the age limits restrict numbers and they should continue. This will stop the flooding because it will keep prices of new vehicles up. We question why when considering HC policy the Council is listening to PH. Why are you taking more information from PH reps than taxi reps. Mr Oakes suggests an unmet demand survey. There is no place for this. An unmet demand survey takes place when there are restricted numbers of hackneys, and in Burnley we don‟t have restricted numbers. Proposal retain 3 to 12 years. M Arif – PH Mr Goodwill gave an example of 1 person who has invested in a Burnley HC vehicle he is struggling for a living. PH in need of help. General interest for public, look at trade, how can the council help the trade work together, PH & HC doing a very similar job but under different trade. PH also suffering they need to do what‟s affordable for the public, Hackneys are too expensive. Town Centre is closed to keep certain people away. Proposal - minimum age for HC, 6 years. why because it‟s easier for HC driver to replace vehicle due to damage beyond repair ,more affordable, easy accessible for workers & people who want to come into the trade. Currently new entrants hindered from entering the trade by high new vehicles costs. These high costs impact on the costs of maintaining vehicles. Proposal - Lower age limit 8 years (minimum 6 for non-wheelchair accessible cars) and upper age limit 15 years, also welcomes different vehicles being introduced onto the fleet. Charles Oakes, HC Association Agrees with what‟s been said. He was in Burnley over the weekend and the state of the town at night was intolerable. Queues of hackneys and private hire vehicles particularly at night were manic. Is the Council policy still serving the public or is there an issue detrimental to the trade and public. Drivers are working long hours. The Hackney trade in Burnley has not moved on. There has been no change in policy in relation to Hackney vehicles. Is it right, reasonable, affordable? If the lower age limit of HC is raised the PH will replace their cars with Hackneys. HC is struggling now. The ranks will be full and emissions from taxis driving around the town/waiting for fares will increase. By carrying out an unmet demand


survey it will evaluate the current situation in Burnley. HC can never compete on price we are serving the Member of public. To maintain the position, an unmet demand survey for hackney vehicles is requested to re-introduce limits on the number of vehicles allowed on the fleet. When asked by Cllr Isherwood to confirm his proposal in relation to age, he indicated 3 to 15 years. M Yousaf - PH Association Indicated that he agreed with Mr Arif‟s views.

Members made the following comments.

More work needs to be carried out to clamp down on illegal PH trade, better enforcement in the town centre. The proposals put forward form PH will have a detriment to HC trade.

Members want a satisfactory standard of taxi vehicles in Burnley, the Council wants to improve safety & standard. Only 30% of vehicles passing their MOT.

Members further emphasised that the Borough needs a decent acceptable standard of taxis. Protect the people of this borough, duty of care to residents.

HC fares are controlled by the Council. PH fares are controlled by the operators independently. Taxi drivers should be more responsible as a service provider.

A question was asked by a Member on the number of vehicles in Burnley. Karen Davies responded that there were 41 Hackney, 308 PH, 34 operators, and 598 drivers.

Members expressed the number of PH vehicles roaming in the town centre picking passengers up without pre booking is become an issue.

report to licensing committee · mercedes vito taxi. 8. a report to this committee on 22nd november...

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