1. automotive and vehicles
2. cars

ABERDEEN CITY COUNCIL
Name of Committee:
LICENSING
Date of Meeting:
27th JUNE 2005
Title of Report:
TAXI/PRIVATE HIRE CAR REVIEW
THE HIRING OF PLATES, THE INTRODUCTION OF
ACCESSIBLE TAXIS/PRIVATE HIRE CARS AND RELATED
ISSUES.
Lead Officer:
Corporate Director of Legal and Democratic Services
Author of Report:
Donald Macleod, Solicitor, District Court/Licensing
Legal and Democratic Services
Tel:
01224 (52)2357
E-mail:
[email protected]
Purpose of Report:
(1)
To advise the Committee of the discussions on these matters within the Taxi/Private
Hire Car Review Group set up in 2001.
(2)
To enable the Committee (a) to make decisions on the way it is willing to permit taxi
and private hire car licence holders and drivers to organise their businesses within
the requirements of the legislation and (b) to decide whether or not it wishes to retain
specific conditions prohibiting taxi or private hire licence holders from hiring or
lending their vehicles to others.
(3)
To enable the Committee to make decisions, in the continuing absence of directions
from Central Government, as to
(a)
the extent it wishes to make taxi and private cars available to all passengers in
Aberdeen, including disabled persons, whether travelling in wheelchairs or not,
(b)
the types of vehicles to be permitted to operate as taxis and private hire cars in
Aberdeen for the next 10 to 20 years,
(c)
any additional duties to be placed on drivers to assist passengers,
(d)
how it intends that the cost of any policy is to be met by the public, the
taxi/private hire car trade and the Council.
Note
The law in relation to these matters is often less than clear and many basic issues cannot
be agreed with all sectors of the taxi trade. An attempt has been made to summarise the
different views of members of the Group. All members of the Group wish that a practical
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and appropriate way forward can be achieved which would result in all of the public in
Aberdeen to having access to safe, affordable and well designed taxis and private hire
Cars. It is recognised that all operators of taxis and private hire cars should have an equal
opportunity to earn a reasonable return from the substantial investment in their
businesses, so as to encourage operators to remain in the trade and to invest in
improvements. It should also be noted that the opinions as to the law or other matters are
made only for the purposes of discussion on policy. The Licensing Committee, when
considering any applications before it, would consider each application on its own merits
and take account of any submissions made by applicants or their representatives.
Summary of Report:
This report details –
The Hiring/Lending of Plates
(1)
The legislation relating to the licensing of taxis/private hire cars and their drivers in
Scotland, before and after 1984, and the important differences between the Scottish
and English systems.
(2)
(a) The Council’s prohibition in 1981 of proprietors of hackney carriages hiring or
lending their vehicles to another person under the Council’s Hackney Bye-Laws.
(b) The imposition of similar prohibitions in 1986 and 1987 of Conditions 29 and 30 in
taxi licences and Conditions 23 and 24 in private hire car licences.
(3) (a) The investigations by the Council in 2000 into taxi or private hire car licence
holders allowing other self employed taxi drivers to work under their licence, in
breach of these conditions, and indications that approximately 25% of the taxi
trade in Aberdeen were involved in this practice.
(b) The Police reporting 88 taxi or private hire car licence holders to the Licensing
Committee for breach of these conditions.
(c) The Committee’s decision in 2001 to refuse to renew 22 licences due to breach of
these conditions.
(d) The Sheriff’s decision, on appeal, remitting these applications back to the
Committee for reconsideration so that the reasons for and importance of these
conditions could be explored.
(4) (a) The decision of the Licensing Committee on 22nd October 2001, in light of the
above decision, (i)
to, meantime, renew all the licences where the holder had been in breach of
the said conditions and
(ii)
to set up of a Taxi/Private Hire Car Review Group, involving the trade, to look
at these and other issues affecting the Taxi/Private Hire Car trade in
Aberdeen.
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(b) The discussions that have taken place to date at the Review Group.
(5) (a) The hiring of hackney carriages is permitted by law in England and Wales, but the
hiring of plates alone is not. Reference is made to the situations in Edinburgh and
Dundee.
(b) The Dundee Sheriff Court decision in 2004 that the hiring of a taxi plate by the
executors of a deceased taxi licence holder to a taxi driver caused, in that
particular case, the driver to be be regarded as operating the taxi without a taxi
licence. This entitled the Council to regard the driver as not being a fit and proper
person to hold a taxi licence, when he subsequently applied for a taxi licence for
the vehicle in his own name.
(c) The concerns expressed by Tayside Police as to the motor insurance position of
persons operating using another person's licence.
(d) The lack of discussion in the above case as to what exactly constituted
“operation” of a taxi.
(6)
An attempt at a reassessment of the legal issues relating to the “hiring” issue by
the Corporate Director of Legal and Democratic Services.
(a) The hiring or lending of vehicles for use as taxis or private hire cars of taxis is
legally acceptable, but the real concern for the Committee should be the hiring
of plates to drivers, who might require to hold the taxi or private hire car licence
for the vehicle in their own name,
(b) Self employed taxi or private hire car drivers may be “operators” of taxis and
private hire cars. They should, therefore, hold the taxi or private hire car licence
in their own name (notwithstanding that they hold a taxi driver’s licence).
Conditions 29/30 and 24/25 were designed to prevent the hiring of vehicles. They
were more appropriate to the licensing of hackneys in Aberdeen prior to 1984
and do not take into account the changes to taxi licensing in Scotland introduced
in 1982. The conditions do not now adequately address the real issue, which is
the operation of taxis or private hire car vehicles by the wrong persons. It is
recommended that these conditions are now unnecessary and should be
removed.
(c) The “operation” of taxis or private hire cars by a driver without a taxi or private
hire car licence in his name may be a criminal offence, but the Committee may
be able to take action against the driver, acting as an unlicensed operator, and
also against the licence holder allowing him to use the vehicle.
(d) The foregoing interpretation is supported by Counsel acting for the Council, but is
not accepted by solicitors acting for parts of the trade. It is difficult to define
“operation”, given a lack of decided court cases to support this approach. It may
be that a conclusive definition can only be provided by the courts.
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(e) Even although taxi drivers may be incorrectly operating taxis or private hire cars
without the taxi or private hire car licence being in their own name, they all hold
taxi driver licences and all of the vehicles have been inspected an passed as
safe for use by the public. Many drivers are unaware of the requirements, as it
has not yet been fully explained to them.
(f) There are practical difficulties in obtaining evidence as to the way drivers and
others arrange their financial affairs to enable the successful criminal prosecution
and/or removal of licences from plate holders and drivers. The main reason for
the practice appears to be to enable new operators to avoid having to make an
application for a new licence in their own name and, therefore, to be able to use
a saloon car, rather than a more expensive wheelchair accessible vehicle. As it
will be difficult to detect such activities, it may be more effective to eliminate the
main reason for the practice by requiring all taxi operators to use a single class of
vehicle, either saloon cars or wheelchair accessible vehicles.
(g) There have been discussions as to a “fast track” application procedure to
accommodate companies offering a “package” to drivers of the lease of a vehicle
and a radio. This involved the new driver being placed on the licence as the
nominated manager, whilst the original plate holder remained on the licence. The
Corporate Director has concerns, however, as to the legality of such
arrangements, as the driver would, in reality, become the sole “operator” of the
vehicle.
(h) If the above interpretation of “operator” is rejected by the Courts, the Committee
would have to accept that the practice of hiring plates was legally permitted.
(7)
The acceptance in Aberdeen, and elsewhere in Scotland, that it is permissable for
the spouse of taxi driver or any other person to drive a taxi or private hire car for
social and domestic purposes. This report, however, highlights that, since 1982,
the law in Scotland is that that is a criminal offence for anyone who “drives” or
“who otherwise has charge of” a taxi or PHC if they do not hold a taxi or PHC
driver’s licence (as the case may be).
Taxis and Private Hire Cars Accessible to the Disabled
(8)
The underlying legislation as to the power of Councils to require particular types of
vehicles as taxis or private hire cars in terms of the Civic Government (Scotland)
Act 1982 and reference to court cases in England indicating that councils have the
necessary legal powers to make a requirement that all taxis in there are have to
be wheelchair accessible.
(9)
The passing of the Disability Discrimination Act in 1995, with particular reference to
taxis and private hire cars, and the early indications that all taxis in the UK would
require to be wheelchair accessible between 2002 and 2012.
(10)
A summary of the Council’s attempts since the early 1990’s to increase the number
of taxis able to carry passengers in seated in their wheelchairs and the Council’s
policy, since 1994, to require only new applicants for taxi licences to operate
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wheelchair accessible taxis, whilst not requiring existing saloon taxi operators to
switch over to these types of vehicles. The current Aberdeen City Transport
Strategy, made in 2001, has as an objective that all taxis in Aberdeen are to be
wheelchair accessible by 2012.
(11)
The types of vehicles permitted by the Council as acceptable wheelchair accessible
taxis.
(12)
The approach adopted by other Scottish Local Authorities to wheelchair accessible
taxis, with two having a requirement that taxi drivers undertake disability awareness
training.
(13)
The licence condition in Aberdeen requiring that drivers give such assistance as
they are able to give to assist in the loading of passengers, the exemption for
drivers pushing wheelchairs on medical grounds and the possibility for improvement
of procedures.
(14)
A summary of previous Council initiatives to introduce training for taxi drivers and
the suggestions that all taxi and private hire car drivers in Aberdeen pass the Top
Taxi Training Course or undertake some form of mandatory disability awareness
course. All of the Trade Representatives on the Review Group have supported a
suggestion that it be a requirement for all new taxi or PHC drivers to hold the Top
Taxi qualification before their applications for taxi or PHC Driver Licences are
granted. The Corporate Director does not recommend the adoption of such a policy.
(15)
The formation of the Wheelchair Taxi Users Group in 2003, their challenge to the
Council’s policy in permitting existing taxi operators to continue to use saloon cars
indefinitely, the obtaining of Counsel’s opinion appearing to support their argument,
with the consequence that the Committee would require to change its policy, so that
the taxi fleet was made up of either 100% saloon cars or 100% wheelchair
accessible vehicles.
(16)
(a) The announcement by the Department for Transport (DfT) in 2003 of the
proposals to introduce wheelchair accessible taxis in most urban parts of England
and Wales to take effect between 2010 and 2020.
(b) The recently published research conducted on behalf of the DfT indicating the
types of ergonomic factors that could be taken into account in the proposed
Regulations to be produced by the DfT, dictating the physical standards to be
met by wheelchair accessible taxis.
(c) The fact that no vehicle presently exists which could include all of these factors
and that purpose built vehicles may have to be constructed at additional cost.
(d) The increasing possibility that the formulation and introduction of these
Regulations will be delayed, so that the aforementioned targets will not be met.
(17)
(a) The non-applicability of the taxi provisions under the Disability Discrimination
Act 1995 to Scotland, with the Scottish Executive having power to make
Regulations as to how these matters will be dealt with in Scotland.
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(b) The announcement by the Scottish Executive in October 2003, indicating their
intention to follow the timetable set down for England for implementation of the
taxi provisions of the 1995 Act, but that they may wish to adopt a different
implementation plan for Scotland, so that it would be for each Council deciding
to what degree it wishes to introduce mandatory requirements for accessible
taxis in their area.
(c) The Scottish Executive indicated that it intended to consult with Councils on
these matters, but that no consultation has taken place.
(18)
The publication in December 2004 of the Draft Disability Discrimination Bill,
proposing that (i)
Councils, in carrying out their functions, would require to have due regard to
the need to eliminate disability discrimination which is unlawful.
(ii)
Persons providing a transport service would no longer be exempt from the
requirement set down in S19 of the Disability Discrimination Act 1995 that it
is unlawful to discriminate against a disabled person.
The above Bill may, at some unspecified time in the future, have some impact on
taxi/private hire car operators and radio control centres, regardless of the progress
of the specific taxi provisions under the Disability Discrimination Act 1995.
(19)
The Corporate Director’s opinion that –
(a) The Civic Government (Scotland) Act 1982 can not, in its present form, support –
(1) a mixed taxi fleet, consisting of a mixture of wheelchair accessible and saloon
cars, and that a taxi fleet requires to be either 100% accessible or not,
(2) a requirement that only new operators must operate wheelchair accessible
taxis,
(3) the retention of a numerical limit on the number of taxi licences that can be
granted, whilst granting taxi licences over that limit to wheelchair accessible
taxis,
(4) a compulsory requirement that taxi drivers pass Disability Awareness tests to
obtain or renew a taxi driver’s licence.
(b) Should the Scottish Executive seek to amend the1982, Act, to introduce
proposals to allow Councils to require only a percentage of their taxi fleet to be
wheelchair accessible and/or have a range of vehicles available, it will be
difficult, if not impossible, to design a fair system which would determine which
operators had to operate more expensive wheelchair accessible vehicles.
(20)
An analysis of the particular requirements of elderly/disabled persons for taxi or
private hire car transport including the results of the recent Mobility Impaired Survey
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in Aberdeen, the difficulties with existing vehicles, particularly as regards wheelchair
accessible vehicles being higher off the ground therefore requiring steps, the
necessity to reconsider the approved designs of wheelchair accessible vehicles, the
desirability of ensuring that vehicles are accessible to all persons, whether disabled
or not, and that vehicles have to be accessible to persons with differing
requirements and not just those requiring to travel seated in their wheelchair.
(21) (a)
The taxi trade, whilst being sympathetic to the needs of persons in wheelchairs
wishing to travel seated in their wheelchairs, have concerns as to the increased
costs of wheelchair accessible taxis, do not agree that these vehicles suit all
types of passengers, and that financial assistance should be provided by the
Council or central government to assist the purchase of wheelchair accessible
taxis.
(b) (1) An attempt to estimate the additional costs involved in the purchase and
operation of various types of wheelchair accessible taxis compared to saloon
car taxis, (2) the introduction of new designs of wheelchair accessible taxis with
lower purchase and operating costs so that the switch to such vehicles might not
be as expensive as it would have been for the trade several years ago and (3) a
tentative estimate by the Corporate Director that overall costs for the trade could
increase between 10% to 20%.
(c) A discussion on the possibility of the Council providing financial assistance for
the purchase of wheelchair accessible taxis, the possibly prohibitive funding
required and the desirability of providing assistance to the trade through the Taxi
Card Scheme by support for fare discounts to disabled passengers.
(d) The necessity for the increased costs of operating wheelchair accessible taxis
having eventually to be funded by increased taxi fares paid by all passengers,
the level of such increases would be subject to monitoring by the Scottish Traffic
Commissioner, the willingness/ability of passengers to pay increased fares and
the potential impact on the taxi trade and the public if costs and fares are too
high.
(22)
A discussion as regards (a) The possibility of the Committee requiring an appropriate insurance to cover
accidents occurring when passengers are assisted on to, or out of, vehicles.
(b) The importance of passengers in wheelchairs being correctly secured for travel in
the vehicle.
(23) The decision to be made regarding whether more wheelchair accessible taxis are
required is fundamentally a social and policy matter, that has to be seen against the
background of the UK government, Scottish Executive, Councils and society’s desire
to reduce discrimination against persons on grounds of their disability or age. The
Committee is required to make a difficult decision, in the absence of clear direction
from central government, and has to balance the needs of some passengers, with
special transport requirements, with its duties to ensure that the taxi trade in
Aberdeen can be economically viable.
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RECOMMENDATIONS
(A) CONDITIONS 29/30 &24/25 AND THE HIRING OF PLATES
That the Committee –
1. Adopts the Corporate Director of Legal and Democratic Services advice that all “selfemployed” taxi or private hire car drivers should hold the licence for the relevant taxi or
private hire car in their own name.
2. Removes Conditions 29 and 30 for taxis and Conditions 24 and 25 for private hire cars
prohibiting the hiring or lending of taxi or private hire car vehicles.
3. Instructs the Corporate Director of Legal and Democratic Services to write to all plate
holders and drivers to highlight the legal requirements as to who is required to hold a
taxi and private hire car licence and to amend application forms, licence conditions and
Guidance Notes accordingly.
4. Instructs the Corporate Director of Legal and Democratic Services to write to those
licence holders and drivers who appear to have been engaged in the practice of hiring
of plates to date, to encourage the correct person to apply for the licence.
5. (a) Instructs the Corporate Director of Legal and Democratic Services on what further
action it wishes to be taken to detect the practice of hiring or lending of plates and
the associated unlicensed operation of taxis and private hire cars and what
approach it wishes to adopt to take against the persons admitting or proven to be
involved in the practice, and
(b) Seeks the views of Grampian Police and the Procurator Fiscal on (i) what steps they intend to take regarding the practice of hiring of plates, and
(ii) their approach to the possible insurance implications of the hiring of plates.
6. Notes the advice of the Corporate Director that the most effective way of attempting to
address the apparently widespread practice of hiring out of plates, and the resultant
activities of unlicensed operators, would appear to be the adoption of an indirect
approach involving the elimination of the “two-tier” nature of the taxi fleet. This would
require the taxi fleet to be either 100% wheelchair accessible or 100% saloon car
vehicles.
7. Instructs the Taxi Inspector and Corporate Director, to monitor the apparent effect of
the above proposals on the practice of hiring of plates and the number of persons on
the waiting list for taxi licences.
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(B) DRIVING OF TAXIS/PRIVATE HIRE CARS BY PERSONS WHO ARE NOT TAXI OR
PHC DRIVERS.
1. Notes the Corporate Director of Legal and Democratic Services’ opinion that taxis and
private hire cars can only be driven by licensed taxi drivers or private hire car drivers
(as the case may be) and should not be driven at any times by spouses or other
persons, unless they are licensed taxi and private hire car drivers, for social and
domestic purposes.
2. Instructs the Corporate Director to take no action in relation to this matter at this time
but to write to the Scottish Executive so that this important matter can be clarified at a
national level.
(C) TAXIS/PRIVATE HIRE CARS ACCESSIBLE TO DISABLED PERSONS
1. That Members note that –
(a) The Committee’s policy, since 1994, to encourage a gradual increase in the
numbers of taxis which can carry passengers seated in their wheelchairs, and
which has resulted in 30% of the taxis in Aberdeen now being wheelchair
accessible, is likely to be subject to a successful legal challenge by the
operators of such vehicles, due to pre existing taxi licence holders being
permitted to continue to operate saloon car taxis indefinitely.
(b) The above policy was adopted on the understanding that mandatory
requirements under the Disability Discrimination Act 1995 would be in place
before now in Scotland, requiring all taxis to be wheelchair accessible within a
ten year period commencing in 2002.
(c) Because of the combination of future legal challenge and a lack of progress by
the UK and Scottish Governments in introducing mandatory vehicle
requirements, the options now available to the Committee, for introducing a
100% wheelchair accessible taxi fleet in Aberdeen are restricted.
2. That Members decide which of the following four options they now wish to take
regarding the provision of wheelchair accessible taxis in Aberdeen.
(A) NO CHANGE OF POLICY
Only existing wheelchair accessible taxi operators and applicants for new taxi
licences would be required to provide wheelchair accessible taxis.
(B) REMOVE THE REQUIREMENT THAT TAXIS HAVE TO BE WHEELCHAIR
ACCESSIBLE
There would be no requirement for wheelchair accessible taxis to be operated at
all. Existing operators of such vehicles would be permitted to substitute saloon
taxis. Saloon cars would be permitted until the Scottish Executive introduces
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Regulations under the Disability Discrimination Act 1995 clarifying the
requirements for accessible taxis throughout Scotland.
(C) 100% WHEELCHAIR ACCESSIBLE TAXI FLEET.
Existing saloon car taxi operators would be required to change to wheelchair
accessible taxis when they presented a vehicle for substitution and would be
required to provide a wheelchair accessible taxi within a suggested period of 5
years, if no substitution had taken place before then. Applicants for new taxi
licences and those substituting existing wheelchair accessible taxis would still
require to provide these vehicles.
(D) ABERDEEN TAXI GROUP’S OPTION FOR ONLY PART OF THE TAXI
FLEET TO BE WHEELCHAIR ACCESSIBLE
All persons holding taxi licences as at 1st July 2005 would have 6 months to
decide whether they wished their plate to be a wheelchair accessible or saloon
car plate. Should a saloon taxi plate holder wish to switch, he would have to
substitute a wheelchair accessible taxi by 31st December 2005. If a wheelchair
accessible taxi plate holder wished to choose a saloon car plate during this
initial 6 months, he would not be required to physically substitute a saloon car
on to his plate, but could do so at any time to suit themselves. As at present,
new persons applying for a taxi licence would have to provide a wheelchair
accessible taxi.
As an incentive for plate holders to switch to or remain with wheelchair
accessible taxis, it is suggested by ATG that licence holders who have held
wheelchair accessible plates for five years would be allowed to transfer their
plate at any time. This would enable them to sell their plate when they wished to
leave the trade. Only wheelchair accessible plate holders would be able to use
this facility.
ATG amended its original version of the option by setting down 2020 as the
target date when all taxis in Aberdeen would require to be wheelchair
accessible.
3. That, if the Committee adopts Option C (all taxis to be wheelchair accessible),
Members instruct the Corporate Director–
(a) In consultation with the Taxi Inspector, the Chief Vehicle Examiner, the taxi trade,
manufacturer/modifiers of vehicles, and disability groups, to re-examine the
specifications for wheelchair accessible taxi vehicles. This is required to ensure
that such vehicles are of an appropriate design to meet the needs of as wide a
range of passengers as possible, regardless of their age or disability. Particular
attention would be given as to the design of retractable steps. Such vehicles would
still be required to carry passengers seated in their wheelchairs. This new
specification of vehicle would be known as an Accessible Taxi.
(b) To report back to the Committee, in due course, on the specification for an
Accessible Taxi and the various vehicles which will meet this standard. The
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Committee would then specify a period of time within which such vehicles are to be
provided.
(c) That Members do not require private hire cars to be accessible at this time, but to
note that (a) they would appear to have the necessary legal powers to introduce
such a requirement, notwithstanding that the Disability Discrimination Act 1995
refers to taxis only, (b) such policy could possibly be challenged by the trade as
being unreasonable and (c) should a decision be made to require a 100%
accessible taxi fleet, the Committee could, in the future, consider exercising these
powers if there has been a significant switch by taxi operators to private hire cars
and it considers that the service available to the public has suffered as a
consequence.
(D) SUGGESTION THAT ALL NEW TAXI OR PHC DRIVERS TO OBTAIN TOP TAXI
QUALIFICATION
1. That Members encourage all taxi and private hire car drivers to obtain the Top Taxi
course or similar qualification, but do not require all new applicants for Taxi or Private
Hire Car Drivers to hold the Top Taxi qualification before their applications for taxi or
PHC Driver Licences are granted
2. That members instruct the Corporate Director to write to the Scottish Executive to
suggest that the law be changed so that all taxi/PHC drivers, whether new or existing,
would require to undergo training and that the Council be specifically allowed to refuse
to grant or renew taxi/PHC driver licences if such training is not undertaken/passed.
3.
However, if Members decide that they wish all new taxi and PHC drivers to pass the
Top Taxi course, it is recommended that a final decision be deferred to enable the
Corporate Director to produce a report on the (1) the content of the Top Taxi Course
and (2) the likely impact on the application fees for new drivers.
(E) MEDICAL EXAMINATIONS OF DRIVERS SEEKING EXEMPTION FROM PUSHING
WHEELCHAIRS.
1. That members do not require increased controls on drivers seeking medical exemption.
2. If members wish to wish increase controls in this area, they could decide that (a) All taxi drivers seeking exemption will require to be examined by the Council’s
medical providers.
(b) All taxi drivers presently holding the exemption will require to be examined by the
Council’s medical providers, prior to their exemptions being brought before the
Committee for reconsideration.
(c) Medical exemptions will be granted for a specific period, dependent on the nature
of the injury/disability and drivers will be re-examined by the Council’s medical
providers once the said period has expired.
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(d) That the costs of such medical examinations will be borne by the Council in the first
instance and recovered from through taxi/PHC application fees.
(F) APPROACH TO SCOTTISH EXECUTIVE.
1. That Members instruct the Corporate Director to write to the Scottish Executive to
highlight that (a) The Scottish Executive has encouraged Scottish Councils to consider requiring all,
or a proportion, of the taxis in their areas to be wheelchair accessible, in advance
of the introduction of, the Disability Discrimination Act 1995. This has encouraged
several Councils in Scotland to introduce requirements whereby (a) only new
applicants for taxi licences are required to provide such vehicles, or (b) if a
numerical limit has been set as to the number of taxi licences to be granted, this
number can be exceeded if the taxi provided is wheelchair accessible. It appears
to the Corporate Director that the Civic Government (Scotland) Act 1982 does not
support such practices and the Scottish Executive should be encouraged to
commence consultations, without further delay, as to the way the taxi provisions of
the Disability Discrimination Act 1995 are to be introduced in Scotland.
(b) Whilst it is of assistance to disabled persons that accessible vehicles are provided,
it is equally important that drivers accept the obligation to provide assistance, are
suitably trained and are properly insured to provide such assistance. The
Corporate Director has concerns that the Civic Government (Scotland) Act 1982
may not entitle Councils to make such requirements. It is therefore suggested that
the Scottish Executive consider amending the 1982 Act, so that Councils have
express powers to(1)
require taxi and private hire car drivers to give assistance to disabled
passengers getting into or out of their vehicles, whether the passenger is in
a wheelchair or not,
(2)
require all taxi and private hire car drivers to be appropriately trained in
dealing with disabled persons particular transport needs and for Councils to
be able to refuse to grant or renew driver licences if the appropriate
qualifications are not held, and
(3)
require that appropriate insurance is in place to cover incidents occurring
whilst passengers are being assisted into and out of taxis and private hire
cars by the driver.
2. That Members undertake to review requirements on disability access for taxis and
private hire cars every 5 years. A review should also be carried out –
(a)
When the Scottish Executive announces its policy on accessible taxis.
(b)
When the Department of Transport issues Regulations on the designs of
accessible taxis under the Disability Discrimination Act 1995.
(c)
When the Disability Discrimination Bill is enacted.
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(d)
When necessary in light of operation of accessible taxis in Aberdeen and on
the effect on the taxi trade and public.
Consultation undertaken with:
Taxi Trade, Police and Disability Groups
Linkage to the Community Plan
To ensure (1) that all members of the community have equal access to an adequate
supply of taxi and private hire cars and (2) that all sections of the taxi and private hire car
trade in the city can operate in an appropriate business environment to encourage
operators to remain in the trade and for new entrants to enter the trade and to invest in
high quality vehicles.
Implementation:
Resource Management Implications:
People: It is difficult to estimate whether more staff will be required to bring any of the
foregoing policies into effect. A decision to revert to a 100% saloon car taxi fleet
would ease pressure on staff. However, additional legal and inspection staff at
the Taxi Inspection Centre may be required to deal with any litigation/disputes
arising from the implementation of any of the above proposals, to arrive at
detailed policies, to review vehicle standards, to carry out additional inspections
and to correspond with the Scottish Executive and other Councils on these
issues.
Finance: (a) the costs of any additional staff would require to be fully recovered from
licence application fees.
(b) the requirement for drivers claiming exemption from pushing wheelchairs on
medical grounds to be examined by the Council’s medical providers could
have a significant impact on costs (particularly given any increase in the
number of wheelchair accessible taxis) and the costs of such examinations
would be required to be recovered from application fees.
(c) any increase in the costs of taxi operation would be likely to result in an
increase in taxi fares to take account of the greater costs of purchasing and
operating wheelchair accessible taxis. This may result in the Council having
to pay more for Education and Social Work Transport Contracts and to
increase the costs of supporting the Taxi Card Scheme.
Systems &
Technology:
None
Property:
None
Other Equipment (desks, accommodation, etc.):
None
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Other:
None
Other Implications:
Health and Safety:
Taxi passenger safety would be improved with adequate training
for taxi drivers for disability awareness issues.
Risk Management:
None
Equal Opportunities:
Potential for improved access to public transport by persons with
disabilities.
Sustainability:
Environmental:
The introduction of generally heavier accessible taxis may, all
other matters being equal, lead to an increase the use of fossil
fuel and may lead to an increase in traffic pollution.
Social:
Increased social inclusion of persons with mobility difficulties.
Economic:
The potential increase in taxi fares of a 100% accessible taxi
fleet may affect the number of persons willing to travel by taxi.
SIGNATURE:
Date
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SECTION 1
THE LEGISLATIVE BACKGROUND
TAXIS/PRIVATE HIRE CARS IN THE UK
RELATING
TO
THE
LICENSING
OF
1. OVERVIEW
The licensing and control of horse drawn hackney carriages existed in varying degrees in
Great Britain for many centuries. The development of the motor car resulted in these rules
being applied to motorised taxis.
The hackney licensing rules which developed in the larger cities in England in the
19th Century have formed the basis for the licensing of these vehicles throughout England,
Wales and Scotland. Hackney carriages or taxis can pick up passengers on the street.
Private hire vehicles/cars (which are vehicles not licensed as hackneys or taxis cannot
pick up passengers off the street) evolved due to the increase in telephone bookings.
With various amendments, these hackney licensing rules remain in effect in England and
Wales. However, they ceased to apply in Scotland in 1984 when the taxi licensing
provisions of the Civic Government (Scotland) Act 1982 came into effect. The approach
adopted in Scotland is unique and, as a consequence, widespread practices which may be
acceptable in the rest of the taxi industry in the UK may not be acceptable in Scotland.
An effort has been made below to summarise the main legislation applicable to taxi/private
hire vehicles/cars in the different parts of the UK. It is hoped that the law as stated for
England and Wales is correct in its essentials. Reference has been made to “Taxis –
Licensing Law and Practice” by James T Button, 2nd Edition, LexisNexis/Butterworths.
(a) England and Wales
The Town Police Clauses Act 1847 – This Act forms the basis of hackney licensing in
England and Wales. London has its own system.
Local Government (Miscellaneous Provisions) Act 1976 – This amended parts of
the hackney licensing system and introduced the rules for the licensing of private hire
vehicles in England and Wales.
Prior to 1985,local authorities in England and Wales could decide whether they wished
to licence hackneys and/or private hire vehicles in their areas. The Transport Act 1985
made it a mandatory requirement that hackneys had to be licensed in all local
authorities throughout England and Wales. The licensing of private hire vehicles is still
discretionary, although most local authorities now license them.
(b) Scotland - Pre 1984
Certain Scottish Councils had powers under various local Acts to license Hackneys in
their own areas. These schemes were largely based on the English Hackney licensing
Scheme.
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In Aberdeen, the relevant Acts and Bye-Laws were S 143 -168 of The Aberdeen Corporation (General Powers) Order 1938. This
allowed the Council to licence Hackney Carriages in the city. The Council introduced
a series of Bye-laws relating to the licensing of Hackneys, with the last being The City
of Aberdeen (Hackney Carriage) Bye-laws 1980, which came into effect in June
1981.
(c ) Scotland - After 1984
The Civic Government (Scotland) Act 1982 came into effect in 1984, and introduced
the present licensing regime for taxis and private hire cars in Scotland. Parliament
decided not to retain the existing model for the licensing of hackneys elsewhere in the
UK and introduced a common set of licensing rules which applied to a range of other
activities such as street trading, market operators, late hours catering and public
entertainment licensing. Although there are similarities with the hackney licensing
regime, there are important fundamental differences.
2. WHY HOLD A LICENCE?
Members of the public usually apply for licences when they are told, by the Police, the
Council, or others that they need one to enable them to carry on their business.
The underlying legal reason, however, for a person to obtain a licence of a particular
type is to avoid the prospect of criminal prosecution. All licensing regimes are based on
legislation and each statute has sections setting down the criminal offences which
apply in the event of failure to hold a licence.
One would presume that the legislation would clearly set out who should hold the
relevant licences and, if there were a series of Acts relating to the same or similar
activities over a period of years, there would be some logical consistency within them.
This is often, unfortunately, not the case and it is then up to the Courts to attempt to
interpret the legislation. If the provisions are not clear, the Courts have to try to
ascertain what Parliament’s intentions were when the relevant Act was passed.
It is also often also the case that legislation can operate quite happily for many years
without the interpretation of a particular section being challenged. It is only when a
problem or disagreement arises that particular parts of legislation may come under
scrutiny.
3. THE LICENSING OF VEHICLES, DRIVERS AND RADIO CONTROL CENTRES
A common thread running through all of the legislation relating to taxis in the UK is that
there are separate licences for vehicles and drivers. The reason why this is so is that
an individual may be acceptable as owner or operator of a taxi vehicle but unsuitable
as a driver (he had lost his driving licence, say for drink driving).
Vehicles There is a licence for each vehicle. This is known as a Hackney or Private
Hire Vehicle Licence in England and Wales and a Taxi or Private Hire Car Licence in
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Scotland. (Before 1984, this was known as a Hackney Carriage Licence in Aberdeen.)
Drivers Each driver is also licensed and holds a Hackney Driver’s or Private Hire
Driver’s Licence in England and Wales and a Taxi Driver’s or Private Hire Car Driver’s
Licence in Scotland. (Before 1984, this was known as a Hackney Driver’s Licence in
Aberdeen.)
Private Hire Car Radio Control Centres Persons taking telephone bookings by
passengers for Private Hire Vehicles require to hold a Private Hire Car Operator’s
Licence in England and Wales, but not in Scotland.
There are proposals to licence these activities in Scotland, but no date has been
announced for implementation.
4. WHO REQUIRES TO HOLD A HACKNEY, TAXI OR PRIVATE HIRE CAR DRIVERS
LICENCE?
Details of the relevant legislation are set out in Appendix 1.
The common thread throughout the legislation is that an offence is committed if a
person is detected driving or physically in control of a licensed Hackney Carriage, Taxi
or Private Hire Car/ Vehicle and does not hold a Hackney, Taxi or Private Hire Car
Driver’s licence at that time.
Accordingly, if a person wishes to drive a hackney, taxi or private hire vehicle/car in
England/Wales or Scotland, he ought to obtain the relevant driver’s licence. In relation
to this driver’s licence, the question as to whether he is working on his own behalf or
on behalf of someone else, is irrelevant.
(1) From the English case referred to in Appendix 1, it could be argued that in
Scotland for an offence to be committed, it is not essential that, at the time of
detection the vehicle is actually plying for hire or waiting for passengers.
Accordingly, the practice of taxis or private hire cars being driven, possibly by
spouses, who are not taxi or private hire car driver licence holders, for domestic
purposes would appear to be an offence. Once a vehicle has been licensed as a
taxi or private hire car, it may remain a licensed vehicle at all times, even if the roof
sign or plate are temporarily removed or covered. The practice in Aberdeen has
been that it was permitted for the licensed vehicle to be driven by another person,
provided it was for domestic purposes. Conditions 30 for taxis and Condition 25 for
private hire cars expressly state this.
(2) Grampian Police have indicated that they would take no action against a spouse
driving a taxi or private hire car for domestic purposes, provided insurance was in
place. The Taxi Inspector has advised that this appears to be the position
accepted by most police areas in Scotland. The Corporate Director is of the
opinion that this is a very important issue , given the number of saloon taxis and
private hire cars in operation in Aberdeen, and in probably in other more rural
areas of Scotland, with dual roles as work and domestic vehicles, and the position
should be clarified as soon as possible.
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(3) The trade representatives on the Review Group have expressed surprise as to the
apparent illegality of a practice that has been widely accepted over many years by
the police and the Taxi Inspector. They have also expressed surprise that their
insurers, some of whom are based in England and specialise in insuring taxis,
have been willing to grant insurance. They would have thought that the insurers
would have been aware of the legal position.
(4) The Corporate Director is of the view that the law could have been drafted in the
way it is to make it easier for the police to stop taxis being used to ply for hire by
unlicensed taxi drivers. The police could therefore charge any driver found in a taxi
who does not hold a taxi drivers licence. This would make it unnecessary to have
to prove that the driver was plying for hire or carrying a fare paying passengers.
Grampian Police have indicated that, fortunately, there appears to be few taxis
being used in Aberdeen to ply for hire being driven by drivers who do not hold taxi
driver badges.
(5) In addition to the above offence committed by a driver, the holder of the Hackney,
Taxi and Private Hire Vehicle/Car licence is also guilty of an offence, if he allows a
person without the appropriate driver’s licence to drive the vehicle. As well as
facing prosecution, the hackney, taxi or private hire car licence holder could also
be considered by the Council to be an unfit person to hold a licence. These
provisions probably act as an effective deterrent against licence holders allowing
unlicensed drivers to use their vehicles.
(6) The Corporate Director considers that, if there was an increase in the number of
taxis being driven by unlicensed drivers who were plying for hire, the police might
have to reconsider there approach and they could decide to charge any unlicensed
drivers found in taxis or private hire cars. Members of the trade might have made
decisions as to what type of vehicle to buy and could find a change in police
practice caused them great inconvenience.
(7)The Corporate Director is of the opinion that is good practice for the Council to give
relevant and accurate information to licence holders so that that they can make
appropriate decisions in relation to the activities for which they are licensed. . The
Council is required in terms of the Enforcement Concordat, which the Council has
adopted, to give clear information to licence holders as to what is required of them
before the council takes any enforcement action against them. Licence holders
have a duty, however, to obtain their own legal and business advice and the it is
not competent for the Council to give advice or information as to how the police or
Procurator Fiscal would act in relation to the commission of an offence.
The Corporate Director is of the view that, as the Council is committed to working in
partnership with business and with other agencies, and due to the importance of this
matter to anyone operating a taxi or private hire car, the law as to who can drive a taxi or
private hire car should be clearly stated in Council application forms, guidance notes and
on the Council’s website. The Committee is therefore asked in this report to instruct the
Corporate Director to investigate this matter further and to raise it with the Scottish
Executive.
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5. WHO REQUIRES TO HOLD A HACKNEY, TAXI OR PRIVATE HIRE CAR
LICENCE?
The answer to this question is not so straight forward.
Details of the relevant legislation are set out in Appendix 1.
There is an important difference in approach between (a) the legislation in England
and Wales and the Aberdeen Hackney provisions in operation prior to 1984 and (b)
the present system of licensing of taxis and private hire cars in Scotland post 1984.
The former requires or required the proprietor of the vehicle holding the licence,
whereas the latter requires the operator of the vehicle to hold the licence.
It should be explained that, in legal terms, the proprietor of a vehicle is the same as
the owner. If a vehicle is obtained by way of a Hire Purchase Agreement, the vehicle
technically remains in the ownership of the finance company until the last payment is
made, at which point ownership transfers to the individual. If a vehicle is leased or
hired by its owner to another person, (the lessee), the owner retains ownership of the
vehicle. The lessee does not become the owner or proprietor.
The person who should hold, or have held, a hackney, taxi or private hire car licence
in the different parts of the UK is as follows –
(a) Hackney Carriage in England and Wales
The proprietor of the vehicle should hold the licence. However (1)
(2)
(3)
(b)
Vehicleectsub
toj HP Agreement - the hackney licence should be held by the
finance company.
Vehicle d
leas
to e
a driver - the licence should be held by the proprietor,
Vehicle lent to a driver - the licence should be held by the proprietor.
Private Hire Vehicle in England and Wales
The proprietor of the vehicle should hold the licence. However –
(1)
Vehicle subject to HP Agreement - due to the particular definition of
“proprietor” in the legislation relating to private hire car vehicles, the driver
should hold the licence as he has possession of the vehicle.
(2)
Vehicle leased to a driver - due to the particular definition of “proprietor” in the
legislation relating to private hire car vehicles, the driver should hold the
licence as he has possession of the vehicle.
(3)
Vehicle lent to a driver - the licence should be held by the proprietor of the
vehicle.
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(c)
Hackney Carriage in Aberdeen Prior to 1984.
The proprietor of the vehicle should have held the licence. However (1)
Vehicle subject to HP Agreement - the ownership of the vehicle would have
remained with the relevant finance company and, accordingly, the hackney
licence should have been held by the finance company.
(2) Vehicle leased to a driver - the licence should have been held by the
proprietor of the vehicle, not the driver. (NB between 1981-1984, this would
have been in breach of a condition prohibiting the hiring or lending of hackney
carriages).
(3)
(d)
Vehicle lent to a driver - the licence should still have been held by the
proprietor, not the driver. (NB between 1981-1984, this would have been in
breach of a condition prohibiting the hiring or lending of hackney carriages).
Taxi or Private Hire Car in Scotland after 1984
The licence for a taxi or private hire car requires to be held by the person “operating”
the vehicle as a taxi or private hire car.
It is not relevant whether the vehicle being used is owned by the operator, or leased
or borrowed from someone else.
If a person holds a taxi or private hire car driver’s licence, he cannot “operate” the
taxi or private hire car unless he also holds the taxi or private hire car licence.
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SECTION 2
(a) THE ATTEMPT BY ABERDEEN CITY COUNCIL IN 1981 TO PROHIBIT THE
PROPRIETORS OF HACKNEY CARRIAGES HIRING OR LENDING THEIR
VEHICLES TO ANOTHER PERSON BY AMENDING ITS HACKNEY BYE LAWS
As explained previously, it was permitted under the 1938 Act for a hackney licence
holder in Aberdeen to lease or lend his vehicle to another person. The licence holder
retained ownership of the vehicle and, as he was still the proprietor of the vehicle, the
hackney licence required to remain in his name. When the licence fell due for renewal,
the licence holder entered the name of the person he had leased or lent the vehicle to
on the renewal application form because that person was concerned in “the keeping,
managing or letting for hire of the hackney carriage.”
Under the 1938 Act, the Council had an unfettered discretion on the number of hackney
carriage licences it granted. The limited number of licences available and the growth of
Aberdeen led to a demand for hackney licences from persons wishing to enter the trade
as self employed drivers. The holder of a hackney licence, who did not wish to drive the
hackney himself or have drivers working as employees on his behalf, could benefit
financially by hiring his vehicle to another hackney driver whilst he retained ownership.
The driver paid a weekly sum to hire the hackney carriage from the licence holder. This
system was commonplace.
There appear to have been complaints from hackney drivers in Aberdeen in the late
1970’s that the practice of hiring of hackneys to drivers at high weekly rates was unfairly
exploiting drivers. At a meeting of the Lord Provost’s Committee (which dealt with the
hackney licensing matters up to 1981) on 15th March 1979, the Director of Law and
Administration was asked to consult with the Chief Constable and to prepare a report on
the possibility of amending the Hackney Carriage Bye-Laws to prohibit the proprietors of
hackney carriages hiring or lending their vehicles. It was presumably hoped that the
practice of hiring hackneys would cease, existing hackney carriage owners would give
up their licences and hackney licences would become available for self employed
drivers to take up. Such new drivers would not then require to pay rental fees to
hackney licence holders and therefore not require to work such long hours.
Unfortunately, a copy of the said Report is not now available. On 25th June 1979,
following advertisement of the proposed amendments (to which no objections had been
received), the Committee instructed the Director of Law and Administration that the
Hackney Bye-Laws be amended and a new Section 23 be inserted to the effect that –
“The proprietor of a Hackney Carriage shall not hire or lend his vehicle to the
holder of a Hackney Carriage Licence or to any other person.”
The new Bye-Laws were confirmed on 19th May 1981, and were known as the City of
Aberdeen (Hackney Carriage) Bye-Laws 1980. They came into effect on 15th June
1981.
Section 23 of the Bye-laws, as enacted, was as follows –
“ (1) The proprietor of a hackney carriage shall not hire or lend his vehicle to the holder
of a hackney carriage licence or to any other person. Provided always that any limited
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liability company, firm or other legal persona trading by way of hire of hackney carriages
shall be permitted to use such number of hackney carriage licences as is equivalent to
the number of persons holding a hackney carriage driver’s licence bona fide employed
by them as hackney carriage drivers, and in the event of the number of plates held by
said limited liability company, firm, or other legal persona exceeding the number of
hackney carriage drivers so employed such plate or plates shall be surrendered to the
Hackney Carriage Inspector, and shall be held by him until either the number of
hackney carriage drivers as aforesaid is increased or until the same are revoked by the
District Council.
(2) The legal owner of a vehicle who is the holder of a hackney carriage driver’s licence
but not the holder of a hackney carriage licence shall not hire or lend the said vehicle to
the holder of a hackney carriage licence to enable such vehicle to be licensed and
operated by as a hackney carriage without the consent of the District Council which
consent shall be granted only in special circumstances. “
Tit is of interest to note that the section is mentioned in the Minute of the Licensing and
General Purposes Committee on 6th November 1981. At this meeting, the Transport
and General Workers Union had submitted a letter alleging that the new prohibition was
not being enforced. The Committee replied that this was a matter for the police.
(b) THE INSERTION OF CONDITIONS PROHIBITING THE HIRING OR LENDING OF
PRIVATE HIRE CARS OR TAXIS UNDER THE 1982 ACT IN 1986 AND 1987.
In 1984, the hackney licensing provisions under the 1938 Act were superseded by the
Civic Government (Scotland) Act 1982. Taxi and private hire car licences granted after
that date were subject to standard conditions arrived at by agreement by a national
working party of local authority officers and civil servants. There appear to have been
no conditions prohibiting taxi or private hire car licence holders lending or hiring their
vehicles in these standard conditions. Accordingly no such conditions were initially
adopted in Aberdeen.
At its meeting on 15th August 1986, the Licensing Committee considered a Report by
the Director of Law and Administration recommending that conditions be inserted in
private hire car licences to prevent the licence holders from hiring or lending their
vehicles to other persons. A copy of the Report and letter from Grampian Police are
attached in Appendix 2.
The letter from Grampian Police recorded the growth of the private hire car fleet in
Aberdeen since the licensing of such vehicles was introduced. There appears to have
been a desire to encourage new entrants to the trade to become taxi drivers, rather
than private hire car drivers. They would then have been permitted to work either, (a) as
employees of existing taxi licence holders or (b) hire taxis from taxi licence holders as
self employed drivers. Private hire car drivers did not, at that time, require to pass the
street knowledge test which taxi drivers had to pass.
The Report by the Director of Law and Administration referred to S 23 in the Aberdeen
Hackney Bye-Laws prohibiting the proprietor of a hackney carriage from hiring or
lending his vehicle. The Director was of the opinion that (a) such a prohibition must be
considered reasonable as it had been confirmed by the Secretary of State for Scotland
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and (b), as there were no provisions in the Civic Government (Scotland) Act 1982 to
indicate otherwise, it would reasonable to add a standard condition to all private hire car
licences in the following terms – “The holder of a private hire car licence shall not
hire or lend his vehicle to the holder of a private hire car driver’s licence, or to
any other person save for domestic purposes”.
There appears then to have been further consultations with the taxi trade. On 5th June
1987, the Licensing Committee considered a Report from the Director of Law and
Administration recommending that the prohibition be extended to taxi licences and that
the lending of taxis and private hire cars be permitted in certain special circumstances.
Unfortunately, a copy of this Report cannot now be located and it is not known why it
was decided to introduce the prohibition against taxis being hired or lent out. The
Committee accepted these recommendations and the appropriate conditions were
introduced.
These Conditions appear to have remained unchanged to date and are as follows –
Taxis
Condition 29 – The holder of this licence shall not hire the taxi to the holder of a taxi
driver’s licence or to any other person.
Condition 30 – The holder of this licence shall not lend the taxi to the holder of a taxi
driver’s licence or to any other persons save for domestic purposes,
except with the written authority of the Taxi Inspector.
Private Hire Cars
Condition 24 – The holder of this licence shall not hire his vehicle to the holder of a taxi
or private hire car driver’s licence, or to any other person.
Condition 25 – The holder of this licence shall not lend his vehicle to the holder of a taxi
or private hire car driver’s licence or to any other person, save for
domestic purposes, except with the written authority of the Taxi
Inspector.
(c) EXAMINATION OF THE REASONS FOR THE INTRODUCTION OF CONDITIONS
29/30 AND 24/25
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In prohibiting the practice of the hiring of taxi or private hire cars by their licence holders
in 1986 and 1987, it appears to have been thought to be sufficient to utilise the wording
of the condition prohibiting the hiring or lending of hackneys. It is the view of the
Corporate Director that, in incorporating these two conditions into taxi and private hire
car licences, there appears to have been little appreciation of the fundamental legal
changes to taxi/private hire car licensing introduced by the 1982 Act. (see Section 1 of
this paper).
An apparent inability by all current parties to understand and explain the reasons for the
existence and purpose of these conditions has been the main factor in the difficulties
that these conditions have caused recently.
It is important to note –
(a) The letter from the Police to the Committee in 1986 stated “ The hiring of taxis to
taxi drivers (instead of paying them a wage) is legal and prevalent”. The Police
appear, at that time, to have formed the view that the practice of drivers hiring a
taxi or private hire car, not an employee and presumably keeping all fares as their
own, was legally acceptable merely due to the absence, after 1984, of conditions
expressly prohibiting the practice. This is presumably on the basis that the practice
would have been legal in Aberdeen before 1984, under the hackney scheme, had
it not been for the existence of S23 of the Bye-Laws prohibiting the practice.
It is the Corporate Director’s view that this interpretation is incorrect. It takes no
account of the changed requirements under the 1982 Act that the person
operating the taxi/private hire car requires to hold the taxi/private hire car licence in
his own name. It is the Corporate Director’s view that the drivers hiring or
borrowing these vehicles were, operating the vehicles as taxis or private hire cars
themselves, that the existing licence holders had given up operating the vehicles
and that the relevant licences ought to have been held by these drivers. The hiring
of taxis to taxi drivers (instead of employing them) may have been prevalent at the
time in 1986, but that such a practice was not legal in 1986 and is still illegal now.
(b) It is the Corporate Director’s opinion also that too much reliance may have been
placed on the Secretary of State’s confirmation of the Hackney Bye Law in 1981
as evidence that the conditions prohibiting hiring or lending of vehicles were
reasonable. The Secretary of State certainly examined the Bye-Laws to see
whether they appeared to be reasonable. There were procedures in place for
interested parties to raise concerns with the Secretary of State. Confirmation did
not provide a guarantee that the Bye-Laws would not be declared to be
unreasonable or ultra vires (outwith the power of the Council) by a Court.
In addition, the conditions could have been reasonable and legal under the 1938
Act, but unreasonable or ultra vires under the new legislation.
(c) It is also the Corporate Director’s opinion that, although there are no specific
provisions indicating that the insertion of conditions prohibiting the hiring or lending
of vehicles would be inappropriate or unreasonable, these conditions are not in
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fact required when the terms of the 1982 Act are properly understood. This is
discussed in more detail later in this report.
(d) The reference in Taxi Condition 30/ Private Hire Car Condition 25 to the ability of
the holder of a taxi or private hire car licence to lend the vehicle to another for
domestic purposes is misleading. A vehicle licensed as a taxi or private hire car,
must, at all times, be driven by a licensed taxi or private hire car driver. There is no
exemption in the 1982 Act for unlicensed persons driving the vehicle for domestic
purposes.
(e) The reference in Taxi Condition 30/Private Hire Car Condition 25 to the Taxi
Inspector granting consent to the lending of a taxi or private hire car also causes
concern. This refers to a practice whereby the Taxi Inspector can grant consent to
allow a taxi/private hire car licence holder to utilise another taxi/private hire car
belonging to another licence holder, on a temporary basis should his own vehicle
be unavailable, for example, following a road accident. In such circumstances the
Taxi Inspector can grant consent for a very short period to enable the taxi driver to
continue to work.
This is of assistance to licence holders in unusual circumstances and is designed
to provide a quick procedure for them to continue working without apparently
breaching the conditions. It is however, the view of the Corporate Director that this
does amount to the licence holder “operating” the alternative vehicle without the
licence for that vehicle being held in his own name. The Corporate Director has
recently instructed the Taxi Inspector to cease this practice.
S 10(5) of the 1982 Act provides an appropriate procedure, whereby a licence
holder in such circumstances can apply to substitute another vehicle for use as a
taxi or private hire car. It is necessary to have the replacement vehicle inspected
and then repeat the process once the original vehicle has been repaired.
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SECTION 3
(a) THE PRACTICE OF TAXI/PRIVATE HIRE CAR LICENCE HOLDERS ALLOWING
DRIVERS TO USE TAXIS/PRIVATE HIRE CARS WITHOUT HOLDING THE
TAXI/PRIVATE HIRE CAR LICENCE IN THE DRIVER’S NAME
The practice of taxi/private hire car licence holders allowing a licensed driver to use the
licence holder’s vehicle appears to have been in existence for many years. This
arrangement is attractive to drivers as they can use the vehicle as and when they wish.
The driver merely drives as many shifts as he wishes. He has little or no responsibility
for maintaining the vehicle or dealing with the taxi inspection depot. It is also
unfortunately the case that some drivers do not wish the Inland Revenue or Benefits
Agency to become aware that they are receiving a cash income as a self-employed taxi
driver. In addition, many drivers just cannot afford the capital outlay to buy a vehicle
outright. These drivers would prefer to lease a vehicle on a weekly basis.
Licence holders also find the practice attractive. If they actually employed a driver, the
employer would have difficulty knowing whether the employee was passing all (cash)
fares collected on to him. Accordingly, by hiring his vehicle to a driver, who is then
treated as being self-employed, the licence holder receives a weekly sum and the taxi
driver keeps all the fares he collects. The licence holder is responsible for keeping the
vehicle licensed, insured and maintained.
In addition, if the licence holder actually employs the driver, he would have to account to
the Inland Revenue for the driver’s PAYE, all of the fares collected would be regarded
as the licence holder’s income and he would be liable for income tax on these earnings.
If a taxi licence holder holds more than one taxi or private hire car licence in his name
and actually employs the drivers, it is likely that the total fares collected in any year for
all his vehicles would be more than the threshold for VAT, presently £58,000. The
licence holder would then have to register with the Customs and Excise and be liable
for VAT on all the fares received. However, if each driver is regarded as being selfemployed, they would each be a separate business unit for Customs and Excise
purposes. The total fares collected by each driver in a year would more than likely fall
below the VAT threshold, so that no VAT registration would be required and no VAT
paid.
The practice of hiring taxis has possibly become more wide spread in Aberdeen due to
several developments over the last decade –
(a) The limitation on the number of taxi licences – A limit has been in place in Aberdeen
since 1995 on the number of taxi licences which will be granted. Since then, there has
often been a waiting list of persons wishing to enter the trade as owner-drivers. Some
drivers do not want to wait until a plate becomes available and are willing to pay to
jump the queue by hiring someone else’s vehicle.
(b) The development of large Taxi/Private Hire/Radio Control Companies – With improved
telecommunications and computerisation, several large companies have set up in
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Aberdeen to offer improved taxi/private hire services. They are able to offer a wide
range of services/contracts and their development is welcomed in the city. They require
to have access to a large pool of taxi or private hire drivers who then hire
radio/computer equipment from these companies, These drivers tend not to be
employees of the radio control companies, but to be self-employed. The radio control
offices receive telephone bookings from the public and these bookings are then passed
on to the driver. The driver transports the passenger who pays his fare to the driver.
The fare belongs to the driver and he declares this income to be his own to the Inland
Revenue. The driver hires the radio equipment from the company.
Radio control companies have developed a facility whereby the driver, as well as
obtaining the radio/computer equipment from the company, can also lease a vehicle
from them on a weekly basis. This vehicle comes already insured and taxed. This gives
drivers a great deal of flexibility as they can decide, on a weekly basis, how they wish
to work. The company benefits by offering an inclusive package to attract drivers to the
company.
It is legally acceptable for a radio control company or any other person to lease a
vehicle to a driver. However, some of the companies or individuals have gone beyond
this and leased a vehicle having a taxi or private hire car licence. It takes time and
expense for a driver to apply to the Council for a taxi or private hire car licence for a
leased vehicle in his own name. Such expense and delay could possibly undermine the
attraction of the package of a vehicle and radio on offer by the company. Should the
driver and the company wish to discontinue their relationship, their agreement can be
terminated. Another driver can use the vehicle immediately, without the delay of an
application having to be made for a taxi or private hire car licence in the new driver’s
name.
(c) The increase of “absentee” plate holders and “managed plates”- With the continued
existence of hiring of vehicles, a perception appears to have grown within the trade that
the conditions prohibiting the hiring or lending of vehicles were inappropriate and
therefore unfair. The trade considers that there is nothing legally wrong with the
practice and that it was therefore acceptable to breach the conditions.
This atmosphere appears to have encouraged the development of more diverse
variations to the practice. It was realised by some in the trade that, if the practice of
leasing vehicles was apparently acceptable, there was no reason for the vehicle to be
owned by the licence (plate) holder at all. Some drivers started to use their own
vehicles and substitute these on to the licence (plate). This was especially attractive to
some of the larger companies, who had the financial means to buy a large number of
vehicles. Approaches would be made to taxi/private hire car licence holders who did
not wish to drive their own vehicles. These licence holders would then allow the
substitution of company vehicles on to the licence and these plates would then be
“managed” on their behalf. Radio control companies were involved to the extent that
they would lease the vehicles to drivers as part of the package described above. The
licence holder would receive a monthly income from the company, which would retain
the fares collected. The plate holder very often had no idea which vehicle was on his
licence (application forms and substitutions and inspection being completed or
attended to by the manager) or who was driving the vehicle at any particular time.
28
(d) The desire by new drivers to avoid having to provide a wheelchair accessible taxi – As
explained in Section 9 of this Report, the Council has required all persons applying for
new taxi licences since 1994 to provide wheelchair accessible taxis. Existing taxi
licence holders have not been required to switch over from using saloon car taxis. This
has led to the creation of a two-tier taxi fleet in Aberdeen with approximately 30% of
taxis being wheelchair accessible.
Wheelchair accessible taxis are generally more expensive than saloon cars. The fares
are the same, whichever type of vehicle is used. There is therefore a financial
incentive for drivers, wishing to operate their own taxi, to avoid applying for a taxi
licence in their own name. Some drivers are therefore attracted to the idea of working
under someone else’s existing taxi licence with the consequence that an application
for a new licence does not require to be made. Plate holders and companies are more
than happy to suggest to a new driver that he use one of the hiring schemes so that he
can use a saloon car. The conditions prohibiting hiring or lending of vehicles are
therefore ignored.
The existence of the two-tier taxi fleet and the consequential financial benefits to taxi
drivers appears to be the main reason why the question of the hiring of taxis has
become such an issue in Aberdeen. Certain of the large companies in the city wish
this matter resolved so that they can incorporate the practice of hiring of taxis or
private hire cars into their business plans, safe in the knowledge that the practice will
not be struck at by the Council or the Police.
(b) THE POLICE REPORTING 88 TAXI OR PRIVATE HIRE CAR LICENCE HOLDERS
TO THE LICENSING COMMITTEE IN 2001 FOR BREACHING CONDITIONS 29/30
OR 24/25
Following the introduction of the conditions prohibiting the hiring of taxis or private hire
cars, the Taxi Inspector and the Committee became aware of allegations that certain
persons were engaged in the practice. It was very difficult to obtain direct evidence of
these activities and, when approached, drivers and plate holders refused to co-operate
and give statements. A licence holder was apparently reported by the Taxi Inspector to
the Procurator Fiscal in the late 1980’s and charged under S 7(2) of the 1982 Act for
breaching a condition attached to his licence. The case was unsuccessful, as none of
the relevant witnesses were willing to give evidence at the trial.
Thereafter, the Taxi Inspector could only encourage licence holders to refrain from the
practice and, in many cases, licence holders accepted a warning and appeared to have
rearranged their business practice.
It would appear that the practice of hiring vehicles continued and became more
widespread in the 1990’s.
In 1999, an applicant, wishing to obtain several taxi licences for wheelchair accessible
vehicles appeared before the Taxi Interview Panel. He advised members that, if he
obtained the taxi licences requested, it was his intention to hire these vehicles out to
taxi drivers in contravention of Condition 29. The Panel thereafter asked the Taxi
Inspector to carry out an investigation on the extent of this practice.
29
The Taxi Inspector interviewed a substantial number of licence holders and drivers and
reported that there appeared to be a large number of the trade involved in this practice.
Certain sectors of the trade, including a body known as Aberdeen Taxi Offices Group
(ATOG), expressed surprise as to the extent and manner of the investigations. They
considered that the practice of taxi licence holders leasing their taxis to drivers was
recognised by the Taxi Inspector and the Committee to be an acceptable practice and
that the trade and the travelling public in Aberdeen benefited from it.
At the end of 2001 and the early part of 2002, Grampian Police lodged letters of
objection or observation in relation to 88 applications for renewal of taxi or private hire
car licences alleging that the relevant licence holders were in breach of Conditions
29/30 or 24/25.
The Police letters followed from the Taxi inspector’s interviews of drivers and licence
holders regarding their business practices. Many of those interviewed were vague in
response to questions, but many were quite open about the way they worked and
provided copies of receipts or rental documentation. It is understood that drivers were
advised by the Taxi Inspector that her enquiries were in relation to the taxi or private
hire car licence holder’s renewal applications. There was no suggestion that the drivers
were committing any crime and they were not cautioned prior to interview. This, coupled
with a belief that hiring practice was acceptable, led to a relatively high degree of cooperation from drivers.
A wide range of different arrangements were disclosed and included the following –
(1) The absentee plate holder
Possibly through an intermediary, a driver obtained the use of a plate from an absentee
licence holder and substituted his own vehicle on to the licence. On most occasions the
plate holder received a set weekly or monthly payment from the driver, although parties
often denied that any money changed hands. The driver owned the vehicle and
regarded himself as self-employed.
It is a licence condition that the DVLA Registration Certificate for the taxi or private hire
car has to be in the name of the plate holder. Accordingly, many of the vehicles were
registered in the name of the plate holder, although many drivers and licence holders
were evasive as to who the true owner of the vehicle was. The fact that a vehicle is
registered in an individual’s name is not conclusive proof that he owns the vehicle. It is
suspected that many vehicles were merely registered in the plate holder’s name to
satisfy the licensing requirement and that the drivers were the true owners of the
vehicles.
(2) “Family” plates
This is a situation where, for example, a father originally held a taxi or private hire car
licence and scaled down his involvement in the business. His son or daughter took over
the vehicle. The son or daughter operated the vehicle as his or her own and declared
the fares as his or her own income. The father retained the existing taxi or private hire
car licence for the vehicle in his own name.
30
(3) The licence holder who occasionally drove the vehicle himself
This is a variation on the first situation. The plate holder owns the vehicle and
occasionally drove it e.g. at weekends, to supplement his income. He allowed a taxi
driver to use the vehicle at other times for payment of a lump sum each week. The plate
holder and the driver keep their own fares and pay for their own fuel. The plate holder
then assumed responsibility for the repair, insurance and maintenance of the vehicle.
(4) A “package” providing a driver with a vehicle, a plate, insurance and radio equipment.
A taxi driver pays a weekly fee to a radio control company to cover the cost of leasing a
taxi or private hire car which is licensed in the name of the company or another licence
holder, and for the hire of radio/computer equipment. The company owns and maintains
the vehicle, and “manages” the licence. The driver regards himself as self-employed
and declares his income as his own.
(5) Purported link between licence holder and the driver.
This is a variation of 4, but it was claimed that there was some purported link between
the company and the driver. This included the plate holder claiming to have set up a
partnership with the driver. Another arrangement was for the driver to be appointed as a
director of the company. These purported arrangements were often quite unusual in
that there were no references in the agreements as to who would keep the fares. It was
often the case, however, that the fares were, in fact, retained by the driver.
There are other variations, but this gives an illustration of the main cases presented. A
common thread was that the driver and the plate holder would effectively regard
themselves as independent business entities. The police did not specifically appreciate
this issue, but many of the drivers and plate holders indicated in passing that, where
any disclosure was made to the Inland Revenue, the driver declared himself to be selfemployed. The driver would produce his own accounts and be liable for tax on the
profits of his business. The plate holder or the company who leased the vehicle, or
companies with driver/directors, would not declare the fares to the Inland Revenue or to
the Customs and Excise as income.
The table illustrates the frequency of each variation in the cases reported to the
Committee Vehicle owned by plate holder
Vehicle owned by driver
Vehicle jointly owned by driver and plate holder
“Family” plate
“Managed” plate owned by company or middleman
20%
20%
15%
15%
30%
31
(c) THE COMMITTEE’S DECISION TO REFUSE TO RENEW 22 LICENCES AND THE
SUBSEQUENT DECISION BY THE SHERIFF ON APPEAL REMITTING THE
CASES TO THE COMMITTEE FOR RECONSIDERATION
During the period from 19th February to 20th August 2001, the Licensing Committee
refused to renew 23 taxi or private hire car licences, due to the licence holders being in
breach of Conditions 29/30 or 24/25.
Twenty two of these licence holders then appealed to the Sheriff. They co-ordinated
their appeals and one case was placed before the Sheriff as a test case.
Mr C was the holder of a taxi licence, but he did not drive the taxi. He admitted hiring his
taxi vehicle to a taxi driver, Mr A, at the rate of £170 per week. This vehicle remained
licensed in Mr C’s name. The Police objected to the renewal of Mr C’s taxi licence as he
was in breach of Condition 29 of his licence by hiring the taxi to Mr A. As he was
openly breaching the condition, the Committee considered he was not a fit and proper
person to hold a taxi licence.
The reasons for the Committee’s decision were
(a) The condition was long established.
(b) It was designed to protect the independent taxi driver from the large operator, who
may impose high rental charges.
(c) It made it easier for the Police to identify drivers, as the hiring of taxis to drivers was
occasionally not intimated to the Taxi Inspection Centre and this made it difficult to
trace the driver if the taxi was involved in a criminal incident.
(d) It kept working hours for taxi drivers within the reasonable limits of an employee
and it was a general discouragement for long working hours.
(e) The Council, Taxi Inspector or Police had not acquiesced to the practice of hiring
out as claimed by the trade. Direct evidence was difficult to obtain and the condition
was now being enforced
(f) Condition 29 was reasonable.
Mr C’s Solicitors had argued that (1) Condition 29 was a restraint of trade and a restriction of a licence holder’s right to
use his taxi as he chose. It was an unwarranted limitation on the commercial
choices available to the licence holder in the use of his asset.
(2) There was no justification in the 1982 Act for imposing such a wide-ranging
restriction on a taxi licence and the restriction was contrary to the policy and
purpose of the 1982 Act. He claimed that the distinction created between an
employed and a self- employed taxi driver was artificial and misconceived.
(3) There was no evidence of exploitation of self-employed drivers as a result of the
hiring of plates and no evidence of safety issues including drivers having to work
longer and unreasonable hours.
(4) The practice of hiring had been widespread within the taxi trade in Aberdeen. The
Council, Taxi Inspector and the Police had been well aware of the practice and, by
acquiescing to the practice for many years, it was unreasonable for the Council to
enforce the conditions now.
32
(5) There were procedures that could be operated to allow the licence holder to notify
the Taxi Inspector who the taxi was leased to, but it was not an essential part of the
1982 Act that the Police knew who was driving the taxi at all times.
The Sheriff held that the Committee was entitled to impose conditions, but they must be
able to show that any particular condition was reasonable. He said that the Committee
must reveal the material consideration on which it relied in order to reach the conclusion
that Mr C was not a fit and proper person. He said that the only fact which emerged
from the Statement of Reasons was that Mr C admitted a breach of Condition 29. In the
Sheriff’s view, the breach of a condition did not, on its own, make a person unfit to hold
a licence. It may do so, but much depended on the nature of the breach, the nature of
the condition and how serious the breach was. In his view, the Statement of Reasons
provided for Mr C’s case did not fully set out the reasoning behind the Committee’s
decision.
The Sheriff refused to come to a conclusion on the reasonableness of the Committee’s
decision on the basis of the arguments before him from both sides. He was of the
opinion that the Committee should reconsider Mr C’s case and he remitted the case
back to the Licensing Committee to enable them to reconsider the issues raised. The
Sheriff indicated that the real issue underlying this case, namely the reasonableness or
otherwise of Condition 29, should be fully and properly re-examined by the Committee
and set out in a new Statement of Reasons, if it again refused the licence.
It should be noted that there was no analysis or discussion before the Committee, or the
Sheriff, of the underlying legal requirements for licensing of taxis as set out in Section 1
of this report. The information in Section 2 of this Report on the history and reasons
behind the introduction of the conditions was also not available at that time and was not
discussed before the Committee or the Sheriff. It is the Corporate Director’s opinion that
the fundamental issues relating to this matter were not fully explained or explored
before the Sheriff and it is hoped that this Report will be able to assist in identifying
these issues.
33
SECTION 4
(a) THE FORMATION OF THE TAXI/PRIVATE HIRE CAR REVIEW GROUP
The Licensing Committee discussed the Sheriff’s decision in the appeal by Mr C at its
meeting on 22nd October. The Corporate Director explained that the Committee had
been directed to reconsider Mr C’s renewal application. He advised members of the
re-assessment of the legal position relating to the hiring of vehicles that had taken place
over the couple of weeks since the Sheriff’s decision, supported by Counsel acting on
behalf of the Committee. He indicated that the Committee should to be able to explain
why and when the relevant conditions prohibiting the hiring or lending of vehicles were
imposed and why the practice of hiring or lending was so serious as to justify the
removal of a licence. Failure to provide this information would probably result in any
subsequent appeal by Mr C being successful.
The Corporate Director indicated that it would take some time to carry out the research
into the background of the conditions. He also considered that there was some merit in
exploring a new legal interpretation, which is explained in fuller detail later in this report.
As the consequences of such a reappraisal could have a major impact on the taxi trade
in Aberdeen, it would be preferable to discuss this approach with the whole of the trade
before the Committee acted. It was regarded as impossible to introduce these new
arguments into the present reconsideration of Mr C’s application.
These discussions would take some time and the Committee would require to deal with
Mr C’s case and the other 21 cases pending appeal. Decisions would need to be made
on these cases with in a couple of months and it was unlikely that discussion would be
completed in that time scale. The Committee also had 60 or so other renewal
applications still to be considered which had attracted letters of objection or observation
from the police for breach of the conditions.
The Committee accepted the Corporate Director’s recommendation. It granted all the
renewal applications which had attracted letters of objection from the police and the
Committee issued the following statement “Aberdeen City Council Licensing Committee recognise that, in their current dealings
with the taxi trade with the regard to the imposition of Conditions 29 and 30, we have
reached an impasse. Whilst remaining concerned at the continuing mischief caused by
the problem of unlicensed operators, the Committee wish to find a practical way
forward, that does not involve lengthy and costly litigation, and will be of benefit to all
concerned.
With this in mind, I would like to announce a full and comprehensive review of the
operation of taxi and private hire car licensing within the city. The review will cover all
aspects of the operation of the trade and the Committee hope that the trade will cooperate in this and work with us to resolve the problems together.
The Committee wishes to emphasise that, by announcing this review, it is not
acquiescing in the continued breach of the licensing conditions and the Director of Legal
34
and Corporate Services will be writing to all private hire car licence holders and drivers
to clarify the position of unlicensed operators.”
The following statement was also read out in respect of each application granted which
had attracted a letter of objection or observation from the police in relation to the hiring
or lending of vehicles –
“Your application is granted today, but the Committee does, however, draw your
attention to the fact that – (1) Conditions 29 and 30 (in respect of taxi licences) or 24
and 25 (in respect of private hire car licences) still apply and that persistent breach may
result in action for contravention and (2) the requirement for anyone operating a taxi (or
private hire car) to be duly licensed. We would ask that you draw these facts to the
attention of those using your vehicles, although a letter will be sent to all operators and
drivers clarifying the licensing conditions in this regard.”
Thereafter until March 2002, the Committee granted all remaining pending applications
prefaced by the above statement. The Taxi Inspector and Grampian Police agreed to
refrain from carrying out any further direct enquiries into hiring or lending of vehicles
pending the conclusion of the review. However, the Taxi Inspector and Council officials
have since highlighted to persons who appeared to be entering into such arrangements
that they should take care to ensure that they apply for a licence in their own name, that
these matters were in discussion with the trade and that they should obtain independent
legal advice in the circumstances. Many drivers have accepted this and have elected to
apply for licences in their own name. The practice of hiring or lending of vehicles and
drivers operating under another person’s plate appears to be as prevalent and
widespread as before.
On 15th November 2001, a letter was sent to every taxi and private hire car licence
holder, all drivers and those on the waiting list advising them of the review, asking them
to suggest suitable representatives to serve on the Review Group and asking for
suggestions as to which topics should be covered in the review. Topics suggested for
review include - licence conditions, application forms, advertising on vehicles, zoning,
training of licence holders and wheelchair accessible vehicles.
The membership of the Review Group was at follows –
3 Committee Members – Councillors Urquhart, Webster and Reynolds and then, from
May 2003, 5 members, Councillors Hutcheon, Dempsey (now Craig), Kiddie and
Malone (then John Stewart from January 2005), the Taxi Inspector and the relevant
Chief Inspector on behalf of Grampian Police and, on behalf of the taxi and private hire
car trade, one member from each of the following sectors/groups of the Trade:
Independent Operators (IOTA), Aberdeen Taxi Owners Group (ATOG), AATR,
Aberdeen Airport Taxi Association (Formerly AATA), Private Hire Car Drivers,
Independent owner-drivers, an employer of taxi drivers, and one Solicitor representing
all of the Trade.
Other groups and individuals can and have been co-opted onto the Review Group as
and when topics in which they have a particular interest are being discussed. This
allows special interest groups such as disability groups, airport and railway
35
representatives and wheelchair accessible taxi owners to give the Review Group the
benefit of their assistance at the appropriate time. Substitutes are permitted in the event
that individual group members cannot attend meetings.
It was originally proposed that the Group met at least monthly with the first meeting
taking place on 10th January 2002. It was suggested at this stage that the review take
approximately one year to complete, although it was recognised that this was only an
estimate and dependent on the volume and complexity of the topics to be reviewed.
A report was to be provided to the Licensing Committee to enable the Committee to
take decisions on proposals and recommendations from the Review Group. It was
emphasised that the Committee, and not the Review Group, was to be the decision
making forum. There is no voting on the Review Group. Where there is agreement
between group members as to a particular course of action, the report to Committee will
reflect this and will recommend accordingly. Where agreement cannot be reached, the
report will set out all the arguments fully and will contain no recommendation leaving the
decision at the sole discretion of the Committee.
The Review Group would decide which topics were discussed and dealt with first.
(c) THE MEETINGS AND DISCUSSIONS OF THE TAXI AND PRIVATE HIRE CAR
REVIEW GROUP TO DATE
(1) Discussions in 2002 and a First Set of Proposals
The Review Group met ten times in 2003. The Review was welcomed by the trade
representatives. Although the remit of the Review was to review the whole of the
licensing of taxis in Aberdeen, it was decided that the hiring of vehicles would receive
priority.
There had formerly been a Taxi Consultation Group in operation in the 1990’s. This
group consisting of trade representatives, police and members of the Licensing
Committee and met about twice a year to discuss matters involving the licensing of taxis
in Aberdeen. Unfortunately, the Consultation group had not met since the late 1990’s
when all of the trade representatives had resigned.
The Review Group agreed that, if there were any matters affecting the taxi trade in
Aberdeen, these should be brought before the Review Group for discussion.
Accordingly, throughout its existence, the Group has discussed a wide range of issues,
as and when they arose, e.g. MOT’s for Taxis, taxi issues at the airport, closures of taxi
ranks in relation to city centre events, taxi fare proposals, advertising on taxis, the Office
of Fair Trading Review of the Taxi Industry and the Taxi Card scheme. In hindsight,
although it was useful to discuss current taxi issues with the trade when representatives
were present, the consideration of these other issues forced officers and trade
representatives to divert their attention from the main issues set down for review.
The Review Group considered papers from the Corporate Director and from
Mr Ian McLennan, Solicitor, on the conditions prohibiting the hiring of vehicles and on
the new approach to the hiring issue. It was suggested that the real issue was not the
hiring of vehicles, but the hiring of plates to drivers. It was suggested that the drivers
36
should hold the plates in their own names. If they did not hold the plates they would be
unlicensed taxi or private hire car operators. There was general acceptance by
owner/drivers on the Review Group of this proposition and they provided a copy of an
article from a taxi trade magazine highlighting the taxation implications for taxi drivers of
various ways of using and working a taxi.
Mr McLennan, primarily representing the views of ATOG, indicated that he did not
agree with the interpretation now being advanced by the Council. The law did not define
the term “operator” and that the term did not preclude a plate holder from allowing
another licensed taxi or private hire car driver to use the vehicle as a self employed
driver. The legal requirements were designed to ensure that all vehicles were licensed
and therefore safe for use and that these vehicles were being driven by licensed
drivers. The main purpose of the legislation was to ensure safety of the travelling public
was and it was not therefore necessary for the Committee or the police to be concerned
with the details of the commercial relationship between the driver and the licence
holder.
Some trade members and the police expressed particular unease about absentee plate
holders who had no involvement with the vehicle at all and were possibly “sitting on a
beach abroad” collecting a cheque from home from the driver. There was less concern,
if the plate holder was in regular contact with the driver and accepted responsibility for
ensuring that the vehicle was in good order. There was also discussion on the options
available to new entrants to the trade, whether they went on the waiting list for their own
taxi plate and thereby had to provide a wheelchair accessible taxi or hired a saloon car
taxi and plate.
A proposal was devised within the group to:
(1) explain to drivers that, if they were self-employed, they required to hold a taxi or
private hire car licence in their own name. Drivers operating under someone else’s
plate would have one year to regularise their position by applying for a taxi or
private hire car licence. They would not require to go on the waiting list or to provide
a wheelchair accessible vehicle.
(2) Conditions 29/30 and 24/25 would remain in place meantime.
(3) Proposing a “fast track” procedure, whereby the holder of a taxi or private hire car
licence (A) could enter into a joint venture agreement with a taxi or private hire car
driver (B), who would apply for the grant of a taxi or private hire car licence, with A
as the main licence holder and B as the nominated manager. They would therefore
hold the licence jointly. The Council or the police would not require to be aware of
the exact business arrangements between A and B.
This was considered a compromise with the difference of opinion on the legal
definition of “operator”. It would permit the police to be aware of who was driving a
particular vehicle and would allow companies to effectively offer a “package” to
drivers comprising a vehicle, radio and the appropriate licence (although the driver
would now be a joint licence holder).
37
(4) There was a suggestion that the proposal could include the following additional
provisions – The owner of a wheelchair accessible vehicle could seek a purchaser
for his business. The purchaser would apply for a new licence in his own name and
the old licence holder would relinquish his licence. This would only be permitted by
the Council where the existing and new plate holder’s vehicles were wheelchair
accessible vehicles.
It is felt that those drivers who have gone to the expense of acquiring vehicles they
believe to be wheelchair accessible, should be treated in a more advantageous way
than those who retain their saloon vehicles. Given that there is general acceptance
that wheelchair accessible vehicles will become an important part of the industry in
the future, the Review Group are of the opinion that those drivers who provide a
wheelchair accessible vehicle should be rewarded by having additional benefits
accruing to their taxi licence.
Although transferability of licences is not allowed under the Act, it is proposed that,
where someone is giving up their plate for a wheelchair accessible vehicle then,
with the co-operation of the Licensing Committee, they should be able to surrender
the licence in favour of a third party to whom a licence will then be granted
immediately. This will allow a commercial arrangement to be entered into between
the drivers concerned and a market in such licenses may well develop. With regard
to saloon vehicles, such benefits would not apply, but in the event that a saloon
vehicle owner decided to acquire a wheelchair accessible vehicle, then upon
acquisition of that vehicle, the benefits would be available. It is believed in this way
that a smooth transition to wheelchair accessible vehicles could be achieved.
(5) The Waiting List and Interview Panel Procedure would remain in place.
(6) The Committee undertook to give at least 5 years prior written notice of any
requirement by it for all taxis to be wheelchair accessible. (This would be
independent of any requirements introduced directly by the Disability Discrimination
Act 1995.)
The Taxi Inspector then queried the ability of “absentee” plate holders to effectively
transfer plates to the hiring driver in the amnesty year. She had originally understood
that the only option available was to either give up the plate altogether or to enter into a
joint venture agreement with the driver as joint plate holders. She felt that these
absentee plate holders were benefiting from the practice of hiring out.
The Group appeared to particularly disapprove of a person hiring out his plate to a
driver and then having no knowledge or involvement in the operation of the vehicle. It
was difficult, however, to differentiate these persons from licence holders who for
example operated “family” plates or hired their vehicles from offices. It was hoped that
the amnesty year and the various options open to hiring plate holders might overcome
their reluctance to make the necessary applications. The Group agreed to leave that
part of the proposal as set out in the draft.
The Group discussed whether it was appropriate to include Paragraph 7 (ability to sell
plates) and Paragraph 9 (Council to give 5 years minimum notice of decision to make all
taxis wheelchair accessible) in the letter to the trade. There would only be a market for
38
plates if the demand for taxi licences exceeded the number available. This was not the
case at that time as the number of taxis in operation was less than the limit and there
was no waiting limit.
As regards Paragraph 9, the whole question of wheelchair accessible taxis required to
be discussed in detail. The present Council could not place future Councils under such
a commitment. It would, however, be important that the trade were consulted fully on a
proposal of such a magnitude. The introduction by Central Government of Regulations
under the Disability Discrimination Act 1995 was still not in sight. Even when the
Regulations came into place, there was always an option for the Council (after
discussions with the trade) to request either full or partial exemption from them.
It was therefore agreed that Paragraphs 7, 8 and 9 be deleted from the letter to the
trade as its focus was on the hiring out question and their inclusion would tend to
confuse matters.
It was considered that these proposals offered a practical way forward without the
whole issue of hiring or lending of plates or the definition of “operation” having to be the
subject of expensive, time consuming and uncertain court actions and appeared to
address most parties concerns. A letter with the suggested proposals was sent to all
taxi and private hire car licence holders and drivers on 21st November 2002, inviting
responses by 16th December 2002. A copy of the said letter and proposals are attached
in Appendix 3.
(2) Opposition to the Original Proposals by Wheelchair Accessible Taxi Operators
and Discussions in 2004
The Review Group met on 17th February 2003 and considered thirty responses to the
proposals. There were no responses disagreeing with the Council’s assertion that self
employed drivers required to hold the taxi or private hire car licence in their own name.
The majority of responses were from taxi licence holders who had wheelchair
accessible taxis. They considered that the proposals would allow saloon car operators
to continue to operate their cars, whilst wheelchair accessible taxi operators would still
be required to operate the more expensive vehicles. Certain of the responses were from
drivers who had followed the suggestions of licensing officers since 2001, had given up
leasing a vehicle and had gone to the trouble and expense of purchasing their own
wheelchair accessible taxi. They were particularly aggrieved that other drivers would be
allowed to continue operating with saloon car taxis when they should be applying for
licences in their own name and providing wheelchair accessible taxis. A copy of the
letter from the Wheelchair Action Group is attached at Appendix 4.
Ian McLennan indicated that this response had been anticipated and the original
proposal had attempted to provide an incentive to wheelchair accessible taxi operators
in that they would be the only licence holders who could sell their business as a going
concern and transfer their licences. This proposal had been removed as the Group had
considered this would only be of benefit if there was a waiting list for new taxi licences
and this was not the case at that time.
The Group discussed the interrelationship between the hiring out problem and
wheelchair accessible taxis. It was apparent that the wheelchair accessible taxi issue
39
required to be examined before the hiring matter could be fully resolved as it was
difficult to separate the issues. This view was not shared by all on the Group. Ken Mair,
of ATOG, thought that they were not linked, but the Taxi Inspector and some other
members of the trade thought they were.
The Group noted the position and agreed that there would be little to be gained by
proceeding with the proposals until agreement had been reached on the wheelchair
accessible taxi situation. The Council’s solicitor was instructed to investigate the legal
position relating to wheelchair accessible taxis.
The Group subsequently met on 12th March and 18th June 2003 to discuss matters
other than hiring of vehicles and wheelchair accessible taxis.
The legal position relating to wheelchair accessible taxis was researched by the
Corporate Director. A detailed discussion paper was produced by him and discussed
with the trade’s solicitors. A joint Memorial was prepared seeking Counsel’s Opinion.
Counsel’s Opinion was considered by the Review Group at its meeting on 9th December
2003. It indicated that the Council had the necessary legal powers to require wheelchair
accessible taxis in advance of the introduction of mandatory requirements under the
Disability Discrimination Act 1995. However, the way the Committee had introduced the
requirement, by only insisting that new applicants for taxi licences had to provide
wheelchair accessible taxis, and allowing saloon car taxi operators to continue using
saloons indefinitely, could be regarded as an unreasonable exercise of a discretion. A
legal challenge by taxi operators with wheelchair accessible vehicles would, in
counsel’s opinion, be likely to succeed.
All of the discussion points were collated to see if a solution could be arrived at to deal
with both the wheelchair accessible taxi and the hiring issues.
(3) Officer’s Discussions with Trade’s Solicitors in 2004
A meeting took place on 10th February 2004 involving the Taxi Inspector, Ian
McLennan, Solicitor for ATOG, Ian McDougall, Solicitor for the Wheelchair Accessible
Taxi Association, Brenda Flaherty and Donald Macleod, Solicitors, Licensing Team.
At this meeting, the Council’s solicitors presented an outline proposal for a
comprehensive package of measures designed to deal with both the hiring and wheel
chair accessible taxi issues. These proposals form the basis of the present proposals in
this report. (It was originally proposed that Conditions 29/30 and 24/25 would be
retained to reinforce the legal requirements, but this is not now recommended, following
further investigations as to the reasons why the conditions were originally imposed.)
The proposals were welcomed as a possible way forward. It was recognised that there
was probably little likelihood of agreement on the definition of “operation“ of a taxi or
private hire car. It was agreed that a Report would be produced for discussion at the
Review Group. If these recommendations were supported, the Report would then be
presented to the Licensing Committee for decision.
40
It was recognised that the Report would need to be issued to all in the taxi trade, and
disability and community groups for consultation. As some of the proposals were likely
to be controversial and would be likely to have a significant impact on the taxi trade in
Aberdeen for the next 10 to 20 years, it was considered that the report would attract a
large amount of interest. It was therefore necessary that the report should clearly set
out all of the legal and practical issues involved. It was hoped that this would enable the
public and trade to make informed responses and for the Licensing Committee to make
a decision based on a full appreciation of the issues involved.
(4) Discussions at the Review Group in 2005.
It unfortunately took until February 2005 for the draft of this report to be produced by the
Corporate Director and distributed to the Review Group.
The draft report was considered at a Review Group meeting on 28th February 2005.
There was widespread dissatisfaction among trade representatives as to the delay in
the review. Russell McLeod, of Rainbow Taxis, confirmed that ATOG, IOTA and ATTR
had resigned from the Review Group and that a new trade group, Aberdeen Taxi
Group, had been formed representing a wide cross section of every aspect of the taxi
profession and they represented 75% of the Aberdeen Taxi and Private Hire Car Fleet.
ATG had lost confidence in the Councillors on the Review Group and the Council’s
licensing officers during the last 18 months, due to the lack of progress of the Review.
ATG considered that the Council had ignored the taxi trade and was treating it with
contempt. Trade requests to have meetings had been ignored. There had been no
discussions with the trade during this period on fares, bus lanes, taxi ranks, zoning
issues and taxi marshalls. The long awaited report on Wheelchair Accessible
Taxis/Hiring had now been produced, but there had been no consultation with the trade.
ATG would not agree to the matters contained in the Report being railroaded through
into effect without proper consultation with the trade.
ATG said they wished to work with the Council, the Licensing Committee, its officials
and officers to ensure the long term growth and well being of the taxi industry in
Aberdeen. This was only possible if the Council allowed the taxi trade to have a proper
input into its decisions affecting the trade.
ATG considered that there needed to be a clear path for decisions taken by the Review
Group to reach the Licensing Committee. It was not acceptable for a recommendation
discussed and agreed at the Review Group to then be overturned by the Licensing
Committee. If this were to occur there was little point in having the Review Group
merely as a “talking shop”. ATG could not agree to being part of the Review Group if
councillors on the Review Group agreed with a proposal at the Review Group meeting
and then voted the other way at the Licensing Committee meeting. Reference was
made to the last meeting of Review Group when the trade considered it had the support
of the members on the Review Group for an amended fare request submitted by the
trade, but this was refused at the Committee in January 2004.
ATG indicated that they also wished to have a representative of the ATG Executive on
every Committee where any decision was made which would directly or indirectly affect
the taxi industry in Aberdeen.
41
Mr Russell Mcleod concluded that ATG were not willing to join the Review Group or to
discuss any further matters on the agenda until there was a commitment on the above
two issues.
There was then lengthy discussion on the above requests.
Councillor Hutcheon assured trade representatives that (a) there had been no intention to ignore or disregard the views of the trade or to treat
the trade with contempt. There had been insufficient staff available to progress the
Review and to deal with other licensing work. The Council had, accordingly, taken
steps to employ additional staff with in the Licensing Section. These staff had
enabled the other licensing officers to recommence progress on the Review and to
produce the Draft Report on Wheelchair Accessible Taxis/Hiring.
(b) The said report had been prepared by officers based on the discussions that had
taken place within the Review Group in 2002 and 2003. This was always intended
to be a draft report for discussion by the taxi trade. It was recognised that many of
the matters raised were contentious and any subsequent decisions made by the
Licensing Committee on these matters would have a major impact on the taxi and
private hire car trade in Aberdeen for the next 15 to 20 years. The covering letter
sending out the draft report clearly stated this and the reasons a meeting had been
set down for today (10 days after the issuing of the draft report) and for the 21st
March was to re-establish regular meetings and to facilitate discussion with the
trade. It was intended that a letter would be sent to the whole trade summarising
the report, indicating that a full copy would be available on the council’s web site or
a printed copy was available and that all persons in the trade could then contact
their respective trade representatives and/or write in to give their views on the
various proposals. It was also proposed that, where there were matters in the draft
report which could be agreed, contrary views would be entered into the report to go
to the Licensing Committee. It was accepted that these consultations would take
some time, but it was recognised that there was a desire to progress these matters
by all concerned and particularily by the Wheelchair Action Group.
(c) There had been consultation with the trade on some matters but staff time had
restricted discussions. Officers had been in regular contact with Doug Gillan in
relation to taxi rank arrangements for street closures. The question of Taxi
Marshalls had not been instigated by the Licensing Committee or licensing officers,
but arose from another section of the Council. As soon as the issue was
highlighted, licensing officers contacted Doug Gillan and taxi drivers’ potential
concerns were highlighted at various meetings of the Aberdeen Safer City
Partnership Night Economy Working Group. The lodging of an appeal with the
Traffic Commissioner against the Licensing Committee’s decision had precluded
discussion with the trade on fares until the Commissioner’s decision was made
known in August 2004. The trade had then submitted a request for a review in
October 2004 and this was considered by the Licensing Committee on 10th
November. The Committee had agreed to instruct officers to discuss matters with
trade representatives and for a report to provided for the Committee’s consideration
at the meeting of 7th March 2005. The Corporate Director of Legal and Democratic
Services had agreed to employ an additional temporary member of staff to
42
progress this report. The report had been produced and had been issued to the
trade’s solicitor several weeks previously.
(d) He had received advice from senior legal officers that it was not appropriate, in
certain situations, for individual councillors to agree to meet with individual trade
members out with the normal Committee meetings where there was a possibility of
litigation. The lack of Review Group meetings had obviously not provided another
point of contact and this was regretted.
(e) It was always intended that the purpose of the Review Group was to enable the
councillors on the Review Group to have more time than they would have at
Licensing Committee meetings to discuss taxi matters in depth with trade
representatives and, therefore, to become more aware of issues form the trade’s
perspective. Although the Review Group could make recommendations to the
Licensing Committee, it was always for decisions to be made by the Committee.
Councillor Hutcheon considered it was a matter for each Councillor on the Review
Group to decide whether he or she subsequently changed their opinion when any
matter came before the Committee. He indicated that, personally, would be
reluctant to make such a commitment.
(f) The membership of the various Committees and Sub-Committees which would
make decisions affecting the taxi trade was set down by the Standing Orders set
down by the full Council. If the trade wished representation on such Committees or
Sub-Committees, the only way this could be progressed would be for ATG to write
to the Chief Executive for further action.
Derek Smith, Doug Stephen and Norman Glass all indicated that they had no difficulty
with ATG coming on to the Review Group, as they did appear to represent a large
proportion of the trade. Many of the representatives were the same and it was important
to have an element of continuity.
Doug Gillan of IOTA considered that councillors on the Review Group should speak on
behalf of the trade at the Committee and that the trade representatives were surprised
and disappointed when the Committee and some Review Group councillors, who had
not indicated opposition at the Review Group meeting in December 2003, had voted
against the fare proposal in January 2004.
Councillor Urquhart indicated the setting of fares was always a thorny issue. He had
been a Councillor for 26 years and had never been mandated to refrain from changing
his mind on issues.
Councillor Kiddie indicated that he always found working groups to be of great benefit to
enable him to hear from the experts in a particular area. He agreed that the Review
Group could only make representations to the Committee and he thought it would not
be acceptable for councillors to give a commitment before considering the topic at the
Committee.
Councillor John Stewart indicated that the Review Group was important to enable the
trade to discuss matters with some of the Licensing Committee Councillors and to
obtain information and views from the trade, but nothing was cast in stone as the
Committee could decide not to accept the Review Group’s recommendations.
Councillor Hutcheon considered that ATG’s request for a commitment from Councillors
on the Review Group not to change their minds at subsequent meetings of the
43
Committee could not be provided and that ATG would have to write to the Chief
Executive to ask for representation on Committees or Sub-Committees where decisions
affecting the taxi trade were discussed.
Russell McLeod indicated that ATG were regrettably unwilling to continue discussing
matters further through the Review Group and withdrew from the meeting. The
remaining trade representatives were Derek Smith, James Wilson, Charles Hepburn,
Norman Glass, Tom Wilson and Dave Stephen. It was decided that, notwithstanding the
departure of ATG, the meeting would continue.
There was a brief discussion on the draft Report. It was agreed that it was helpful that
the whole history of conditions 29 and 30 was set out. There was a lot to detail in the
report and it was difficult to absorb in one reading.
The Wheelchair Action Group members indicated that their members wish the
Committee to make a decision as to the type of fleet as soon as possible. They were
concerned that, if the committee decided to introduce a 100% wheelchair accessible
taxi fleet, the suggested period of 5 years, over which saloon taxis would have to be
replaced by wheelchair accessible taxis, was too long and that a period of 3 years might
be more appropriate.
Further discussion of the draft report was deferred. It was agreed that extensive
consultation was required.
At the next meeting of the Review Group of 21st March 2005 Aberdeen Taxi Group
indicated that they were willing to rejoin a re-constituted Review Group. They submitted
a letter dated 8th March 2005 setting down the aims of the Group and providing a note
of the trade groups making up the group. A copy of the letter is attached at Appendix
15. Russell McLeod advised that. Dave Stephen had joined ATG. It was agreed that no
more than 7 ATG members would be at any one meeting. It was agreed that Charles
Hepburn would be the Airport drivers representative.
ATG requested that discussion should concentrate on the wheelchair accessible taxi
issue and they did not agree that there was any connection between that issue and the
hiring of plates. It was agreed that discussion would focus on wheelchair accessible
taxis at this meeting, but that all the other issues in the draft report would have to be
discussed.
Russell McLeod advised that, within ATG, WAG had a different view as to the
wheelchair accessible taxi issue. WAG considered they were being discriminated
against by the Committee’s policy since 1994 to require only new applicants to provide
these vehicles. ATG would prefer the Committee to either adopt a mixed fleet or revert
to a 100% saloon car fleet. ATG did not accept that it would be reasonable for the
Committee to switch over to a 100% wheelchair fleet and they would consider
challenging such a move through the courts. The Committee had to deal with WAG’s
complaint now, however, to avoid WAG taking their complaints to court.
WAG agreed that they wished a decision now from the Committee. They would be
happy if the Committee moved back to a 100% saloon car fleet.
44
In the draft report it was stated that the Committee had three options open to it - (1) No
change in policy, (2) Revert to 100% saloon car fleet or (3) move to a 100% wheelchair
fleet within a relatively short period. It was suggested that there were also other options
open to the Committee (4) The Revolving Door option, whereby the Committee would set an appropriate
percentage of the fleet as wheelchair accessible, new applicants for taxi
licences would require to provide wheelchair accessible taxis and existing
wheelchair operators would be able to switch over to saloon car taxis.
(5) There would be no requirement for taxis to be wheelchair accessible, but the
Council would run a fleet of wheelchair accessible taxis to directly serve the
needs of disabled passengers in Aberdeen.
(6) The larger taxi companies would be required to have a small percentage of their
fleets as wheelchair accessible taxis.
The Corporate Director commented that these options could be placed in the draft
report, but in his opinion (4) could still be criticised as being as discriminatory as the present
policy .
(5) would involve the council in significant expense and would be contrary to the
underlying principles of the prevention of disability discrimination ,which was to
enable wheelchair passengers to have as full access to services as able bodied
passengers have without their having to make special arrangements in
advance.
(6) would not be practical as there were few large firms holding several taxi
licences themselves.
Councillor Kiddie said that he had sympathy with the taxi trade, but that the Committee
was “between a rock and a hard place”. The Scottish Executive was less than helpful in
that it was leaving it up to each council to make a decision on the types of taxis it
wished its area. It would be ideal if a national decision could be made on this, including
the particular design requirements of the vehicles. As a member of the Council’s
Disability Advisory Group, he was aware of the differing demands and preferences of
persons with different disabilities. There was a strong argument for a range of different
types of vehicles in the fleet.
Alastair Williamson of DAG agreed that some disabled passengers in wheelchairs
prefer to travel seated in a saloon car. He had recently been in Glasgow and was
concerned that one taxi driver there told him that they did not bother with ramps to get a
wheelchair passenger into a wheelchair accessible taxi, but merely parked near the
highest kerb and bounced the wheelchair into the taxi. He was very concerned as to this
practice. DAG appreciated the increase in the number of wheelchair accessible taxis in
Aberdeen, but there were still cases where disabled passengers in wheelchairs were
refused at the rank.
45
Derek Smith commented that he had invested in wheelchair accessible vehicles and
found them to be worthwhile vehicles to have in his fleet. He had believed that the
policy of the Council would be to eventually to require all taxis to be wheelchair
accessible. He asked whether, in the event of the Committee deciding to revert to a
100% wheelchair accessible fleet, the Council would pay compensation to taxi
operators who had purchased wheelchair accessible taxis. The Corporate Director
replied that any applicant for a taxi licence after 1994, who had not been happy to
provide a wheelchair accessible taxi, could have provided a saloon car taxi for
inspection. If the Committee had then refused his application on the basis that the
vehicle was not suitable only because it was not wheelchair accessible, the applicant
could have appealed the Committee’s decision to the Sheriff. This was obviously an
expensive, time consuming and risky course of action for the applicant to undertake,
so no one had lodged an appeal. This was the only court remedy open to the
applicant. He thought that it would accordingly be difficult for a wheelchair accessible
taxi operator to raise a court action for compensation now in such circumstances.
Ray Burgess said that it was apparent that the taxi provisions of the Disability
Discrimination Act were never going to be brought into effect in Scotland and that a
local decision was required. ATG preferred a saloon car fleet, failing which a mixed
fleet. He suggested that what was really required was a middle ground decision of
some sort that provided an incentive to taxi operators to use a wheelchair accessible
taxi and allowed everyone a choice. This could possibly include the ability to
“incorporate” a yellow plate, provided it was wheelchair accessible, which could
subsequently be transferred when the holder left the trade and if the numerical limit
was retained, this plate would have a capital value. It was also suggested that
wheelchair accessible vehicles could have reduced application fees.
Councillor Hutcheon requested that ATG should attempt to formulate a fourth option
along the foregoing lines, put it in writing and bring it before the next meeting on 12th
April.
At the next meeting of the Review Group on 12th April 2005, the hiring of plates was
discussed. There was general agreement that Conditions 29 and 30 should be
removed.
Councillor Urquhart indicated that the underlying legislation was flawed, the Licensing
Committee needed to be able to exercise control over who held plates, plates
belonged to the Council and shouldn’t be sold. Matters had not been helped with the
Committee getting different legal advice over the years.
Ray Burgess expressed concerns that the conditions might be removed but then
replaced with replaced with a similar prohibition due to the interpretation on “operating”
now suggested (and which was still not accepted). He considered that there ought to
be scope for working something out to allow the council to have knowledge of who
was using particular taxis.
Councillor Hutcheon said that there was a concern as to some absentee plateholders
hiring out plates and they were not even in the country. These persons did not have
day to day knowledge of what the taxi operating under their plate was doing.
46
The Corporate Director asked why drivers and plateholders seemed to say to the tax
authorities that the drivers were independent self-employed persons who had were in
control of the taxi, whilst advising the council that the plateholders were fully in charge
and responsible, with the drivers acting under their control. Although these were
technically two separate issues, it seemed to be two separate stories given to suit.
Russell Mcleod confirmed the VAT consequences if a plateholder had several plates
and the total fares for those taxis exceeded the VAT threshold. The Corporate Director
was of the view that the VAT and Inland Revenue position encouraged the hiring of
plates and there was a certain business logic to the practice. The law ought to be
amended to make these matters clear.
James Wilson said that he had no problem with a plate holder hiring out his plate
provided he owned the vehicle. He did not approve of the driver pacing his own
vehicle on a hired plate.
Russell McLeod said that the definition of “operation” of a taxi given by the Corporate
Director in his report was not accepted. The case in Inverclyde Council indicated that
the Council had to leave it up to businesses to decide on how they operated and the
Sheriff had not supported Inverclyde in their effort to stop a “franchise” type agreement
for the use of a taxi. The Corporate Director confirmed that this case did not appear to
support his interpretation. He had, however, spent quite a number of pages in his
report trying to explain why he thought this was a poor decision and not properly
argued.
At the meeting of the Group on 16th May 2005 ATG presented their proposal for their
4th Option. A copy of the option and covering letter are attached as Appendix 16. This
had been amended since so that it was accepted that 2020 would be set down as a
date by which all taxis in Aberdeen would require to be wheelchair accessible. ATG
considered that the option was the most attractive to the trade and that the council
would not face a legal challenge from WAG as their members would not be forced to
continue operating wheelchair accessible taxis. The incentive offered could even
encourage some saloon car plate holders to switch to wheelchair accessible vehicles.
The Corporate Director considered that it was an option and should go into the Report
for the Committee’s consideration. Although WAG would not mount a legal challenge if
the option was adopted, as new operators would still require to operate wheelchair
accessible taxis, the two tier taxi fleet would still exist. There would be nothing to
prevent such operators forming “WAG 2” and challenging the council’s policy. They
would be likely to be successful and the Council would be faced with having to choose
either a 100% saloon car or a 100% wheelchair accessible fleet. The hiring of plates
would continue and would possibly increase.
Councillor Hutcheon commented that the uptake of wheelchair accessible plates
depended on the value of plates. These in turn depended on there still being a
numerical limit on the number of taxis set by the council. The Office of Fair Trading
had recommended that Councils should not be able to set such limits. If the limit is
removed at some time in the future, wheelchair accessible plate holders would not find
anyone who would wish to buy their plate.
47
Alastair Williamson of DAG commented that it was important that there were sufficient
wheelchair accessible taxis to meet passenger’s need, but there was no insistence
that the taxi fleet had to be 100% wheelchair accessible.
Ray Burgess commented that a move to 100% wheelchair accessible fleet would
cause many divers to claim medical exemption from pushing wheelchairs and result in
many taxis switching to saloon car private hire cars which might make matters worse
for passengers in wheelchairs. Fewer taxis would result in it being more difficult to
clear the streets on the early hours of Saturday and Sunday morning.
James Wilson agreed that the 4th option would result in more plates being hired out
and that the option was design to suit the groups who were hiring out plates at
present. Plates were being hired out at £50 a week. Given the number of plates
involved, this represented over half a million pounds every year that was being
received by the parties involved in the practice. The hiring of plates did not benefit to
the trade or to the public.
Councillor Jim Kiddie said that it would be preferable if some compromise could be
worked out as he had concerns that a 100% wheelchair accessible taxi fleet did not
address the needs of those passengers who prefer saloon car taxis.
It was asked why the policy on wheelchair accessible taxis had been adopted in 1994.
Brian Sinclair said that in 1994 Minister of Transport made in clear to the taxi trade in
the UK that all taxis in the UK would require to be wheelchair accessible between
2002 and 2002. This was based on the belief that all taxis should be London style
black cabs and that this made the jump to wheelchair accessible taxis comparatively
inexpensive. There was little thought given to the types of vehicles used outside the
large cities which tended to be saloon cars. This was the background against which
the trade and the Council were faced in 1994 when the first policy was made.
Norman Glass said that many in WAG would accept the fourth option as they could
switch to saloon cars. There could possibly still be a few in the Group who would still
mount a legal challenge.
Ray Burgess said that it was important that a ballot was carried out to see how many
plate holders would have wheelchair accessible taxis if the 4th option was taken by the
Council. If too many wheelchair plate holders switched to saloon cars, or if too few
saloon car plate holders switched to wheelchair plates, so there were substantially
less wheelchair accessible taxis than at present, ATG would have to accept that the
4th Option would not be acceptable. A copy of a membership list of ATG is attached in
Appendix 17.
48
SECTION 5
THE PRACTICE OF HIRING OF TAXIS ELSEWHERE IN THE UK
England/Wales
From examining taxi trade magazines and the web sites of Councils and Taxi Trade
Associations in England and Wales, the question of the hiring of taxis or private hire
cars to self employed drivers is seldom directly referred to as an issue worthy of
particular comment. None of the Hackney licensing conditions or documents examined
contain any reference to the practice of, or the prohibition of, such a practice.
References to this practice have been located as follows –
(1) An article, from a taxi trade magazine in 2000, by Michael Brookes, FCA, a copy of
which is attached in Appendix 5. (Reproduced with the kind consent of the author).
This describes two ways of taxi/private hire car companies allowing drivers to use their
vehicle. The first is where the operator effectively rents the vehicle to the driver, who
keeps all fares collected. The second relates to the situation where the driver rents the
vehicle, but only receives a percentage of the fares collected. This is referred to as a
“split bag”. The author is of the view that, for taxation purposes, the first arrangement
would result in the driver being regarded as self employed, whilst the latter would result
in the driver being regarded as an employee of the company.
(2) The
Association
of
Nottinghamshire
Private
Hire
Operators
Website
(www.taxiphnotts.org/vehicle_suppliers.htm) refers to persons wishing to enter the private
hire car trade as a driver being able to rent plated or un-plated vehicles.
(3) Page 17 the Office of Fair Trading Report on the Taxi/Private Hire Car Industry of the
UK refers to the practice of licensed private hire drivers renting a licensed vehicle.
(4) Reference in page 14 of an article “Restricting taxi numbers –Myth and Reality” (which
can be downloaded at www.taxi-driver.co.uk/reality.htm) to the practice of taxi owners
hiring “journeymen” taxi drivers who would pay a weekly sum to use vehicles as self
employed drivers.
There appears, therefore, to be wide acceptance of this practice in England/Wales. As
explained in Part 1, it would appear to be legally acceptable for hackney vehicles to be
hired to drivers, as the hackney licence holder remains the “proprietor” of the vehicle.
The driver does not require to hold the hackney licence in his name, even if he is self
employed.
The Local Government (Miscellaneous Provisions) Act 1976 appears to prevent a
private hire vehicle being hired to a driver. Due to the definition of “proprietor” in that
Act, the driver, by hiring the private hire car, would become the “proprietor” for licensing
purposes. To avoid this difficulty, it may be that vehicles are “technically” lent, so the
private hire car licence remains with the original plate holder.
49
Edinburgh
(a) Lack of Reference to “Hiring of Taxis”
Edinburgh City Council requires all taxis to be wheelchair accessible. Most taxis are
London style cabs. A numerical limit is placed on the number of taxis permitted to
operate. There are no licence conditions prohibiting the practice of hiring or lending
taxis. As all vehicles are wheelchair accessible, drivers will not pay licence holders to
use their plates to avoid using wheelchair accessible taxis. However, as the number of
taxis are limited, drivers may be willing to pay to use another persons taxi, just to avoid
a long wait on the waiting list.
Due to the potential business available in the capital, it is also reported that many taxis
are double or triple shifted. This involves drivers working a taxi in shifts. Each driver
keeps the fares collected during his shift and pays a weekly sum to the plate holder for
use of the taxi. Each driver regards himself as independent from the other drivers. Each
declares their income separately to the Inland Revenue and they are not acting together
as a partnership.
(b) The “Corporate” Taxi Licence
There appears, however, to have been some concern in Edinburgh as to persons
holding taxi licences who have little or no day to day contact with the businesses carried
on under the authority of a licence. The Council devised a policy to allow such licence
holders to give up their licences and to apply for a new “corporate” licence in the name
of a partnership or limited company. A copy of the guidance note is attached at
Appendix 6. This procedure would effectively allow an absentee plate holder to sell his
taxi plate to another person, presumably for payment.
If the partnership route is chosen, the new licence would be in a name of the
partnership, with the purchaser being the nominated day to day manger. The partners
would be the old plate holder and the purchaser. Another person could then be brought
in as a partner, say the purchaser’s wife, and the old plate holder would cease to be a
partner.
If the limited company route is chosen, the shares in the company would be the
property of the old plate holder and the purchaser. The licence would be held in the
company name with the purchaser being the nominated manger. The old plate holder
would then merely transfer his shares to the purchaser and the limited company would
still hold the licence in its name.
The fact that a person has ceased to be a partner or a shareholder of the licence
holding only requires to be notified to the Council in terms of Paragraph 9 (1) of
Schedule 1 to the 1982 Act. The Council does not consider an application for
permission to carry out these changes in any sense. However, the Council would notify
the police. The police could lodge a letter of objection asking the Council to suspend the
licence if, for example, they found out that the person becoming the new partner or
shareholder had a poor criminal record.
50
If a licence is held in the name of a partnership or company it is a requirement, in terms
of Paragraph 5(8) of the 1982 Act, that there is a person on the licence nominated as
the day to day manger of the activity. This person is a joint licence holder along with the
partnership or limited company. If this person ceases to be the day to day manager, an
application requires to be made for a new licence in the name of the partnership or
company with a new manager. If this is a “corporate plate” in Edinburgh, the Council
does not require a new licence application, but allows an application to be made for a
new manger. This costs only £38, compared to £700 for a new licence.
(c) Comments on the “Corporate” Taxi Licence
These arrangements were briefly discussed at the Taxi/Private Hire Car Review Group
to see whether something similar could be introduced in Aberdeen. The procedure
appears to effectively permit taxi licence holders to sell their licences to persons who do
not wish to remain on the waiting list.
There appears to be recognition in Edinburgh that “absentee” plate holders are not to
be encouraged as they are not in control of the vehicle. The Guidance Note states that
the Council would “expect “ that persons with corporate plates would be actively
involved in the trade.
In the opinion of the Corporate Director, the corporate licence procedure in Edinburgh
appears to be a genuine attempt to encourage (a) plate holders to disclose their noninvolvement in the taxis operating in their name and (b) the drivers to come forward and
apply for licences in their own name. This can only be achieved by bypassing the
waiting list system. This mirrors very closely the approach adopted by the Review
Group when it arrived at its first set of proposals at the end of 2003. These proposals,
like Edinburgh’s corporate licence, glossed over the niceties of the legislation, the
Council not concerning itself with the details of the relationship between the plate holder
and the driver.
No analysis appears to have been undertaken in Edinburgh on the question of who
should hold the licence for a taxi. The Guidance Note refers to the absentee plate
holder having little or no day to day contact with “the businesses carried on under the
authority of the licence”. It is the Corporate Director’s view that the only “business”
which can be carried on under the licence is the self-employed taxi driver’s business
and he should apply for the taxi licence in his own name.
It is the Corporate Director’s view that the Edinburgh “corporate” licence is of little
assistance in finding a solution to the hiring of plates in Aberdeen.
Dundee
In the view of Corporate Director, the situation in Dundee is of particular interest, due to
(a) The practice of hiring taxis to self-employed drivers appearing to be widespread
(although this appears to be driven by the limitation of the number of taxis, rather
than the two-tier taxi fleet, of saloon and wheelchair accessible taxis).
51
(b) The approach adopted by Tayside Police and Dundee City Council Licensing
Committee to combat such practices.
(c) The case of Petrie v Dundee City Council, whereby the hiring of a taxi plate by a
licence holder’s executors to a taxi driver was declared to be the illegal operation of
a taxi without a licence.
(a) The Black Market in Taxi Plates in Dundee
A copy of a report by The Depute Chief Executive (Support Services) for Dundee City
Council to their Licensing Committee on 11th November 2003 is attached at
Appendix 7. This report dealt primarily with the policy on restriction of the numbers of
taxi licences to be permitted and a new policy on wheelchair accessible taxis. Section 6
of the Report dealt with the hiring of taxi plates.
The report referred to taxi licence holders, who did not wish to continue operating their
taxi, hiring the plate to a taxi driver on the black market. It was estimated that around
50% of Dundee’s taxi plates are hired out. Tayside Police were particularly concerned
about insurance companies being unaware of the true operators of a taxi. The
insurance companies had indicated that they might not pay a claim based on a
fraudulent proposal form submitted by the taxi licence holder. It is believed that several
drivers/licence holders have been prosecuted for fraud in relation to making false
declarations on insurance proposal forms.
The Report indicated that in these hiring cases, the Licensing Committee had effectively
lost control of who was actually operating under these licences. Tayside Police had
indicated that the practice was so widespread that it was very difficult to detect and
control. They considered that the situation arose due to the restriction of taxi numbers
and that the limit should be removed. The Dundee Taxi Association accepted that the
practice did occur, but denied it was as wide spread as claimed by the police.
Dundee City Licensing Committee decided to retain the limit, but to allow this to be
exceeded if the applicant providing the vehicle operated a wheelchair accessible taxi.
Discussions with the Taxi Inspector in Dundee indicated that the police are still
attempting to tackle the illegal hiring of plates by investigating cases that they become
aware of. Many persons involved in the practice take heed of police advice and give up
operating illegally, but the practice still appears to be widespread.
(b) Condition 24 requiring Taxis to Remain under the Management and Control of the
Plate Holder
Condition 24 for taxi licences in Dundee states – “When a taxi is sold or otherwise
ceases to be under the management and control of the licence holder, otherwise than
where such taxi is replaced by another duly approved vehicle, the licence shall lapse
and become null and void and the holder of the taxi licence shall immediately notify the
licensing authority and return the licence to the licensing authority together with any
plate or thing referred to in Condition 10 above”
This condition ties in with S 10(6) of the 1982 Act, which states that, if the licence holder
sells or otherwise disposes of the vehicle used as a taxi or private hire car and he does
52
not substitute a new vehicle on to the licence within 28 days, he must return the vehicle
licence plate to the Council. The return of the plate under this section does not cause
the licence to lapse permanently, as the licence holder could purchase another vehicle,
substitute it on to his licence and put the plate back on the vehicle.
Paragraph 13(1) of Schedule 1 to the 1982 Act states that a licence holder can
surrender his licence at any time and this causes the licence to cease to have effect.
Paragraph 13(2)(b) states that a licence holder shall deliver his licence to the Council
when he gives up the activity. The section only relates to the licence certificate and the
licence does not cease to have effect until such time as the licence holder either
surrenders it, fails to renew it, or has it refused by the Council when he applies for
renewal. There is no criminal sanction for failing to deliver the licence.
Condition 24 appears to have been incorporated to remind taxi licence holders of their
duty under the Act to return the taxi plates to the Council when he no longer has a
vehicle on which to place it. It is the Corporate Director’s opinion that the condition
cannot change the underlying legal position set out in the Act, and that the taxi licence
would not lapse and become null and void merely due to the lack of a vehicle.
The condition is of interest, however, as there is mention of the licence lapsing and
becoming null and void when the taxi ceases to be under the management and control
of the licence holder. The Council appears to recognise the importance of the taxi being
under the management and control of the licence holder.
It is the Corporate Director’s opinion that the condition is framed in this way so that the
Taxi Inspector in Dundee can point it out to errant licence holders and encourage them
to desist from the activity. This is the equivalent to the conditions in Aberdeen
prohibiting the hiring or lending of taxis. Accordingly, if a taxi licence holder were to be
reported to the Licensing Committee in Dundee for breach of this condition the police
would have to provide evidence that he had ceased to have management and control of
the vehicle. If the Committee then suspended or refused to renew the licence and the
licence holder appealed to the Sheriff, Dundee Licensing Committee would effectively
be in the same position as Aberdeen Licensing Committee, in the C case, of having to
explain the reasons for the condition.
It is of interest to note that the only reported Sheriff Court case in Dundee, relating to
the hiring of plates, makes no reference to this condition or its breach.
From discussion with the Police in Dundee, it would appear that the impetus for the
approach adopted in Dundee is based on Tayside Police forming the view that the
practice of hiring plates involves the taxi licence holder and driver making of fraudulent
declarations. The police have concerns about the possible risk of insurers not paying
claims where there is an accident and it comes to light that the licence holder did not
provide full disclosure that the taxi was, in fact, being operated by another person.
(c) The Petrie Case
The case of Petrie v Dundee City Council (which can be read at
http://www.scotcourts.gov.uk/opinions/B47203.html) in 2004 involved a taxi driver, Mr
Petrie and a taxi licence holder Mr Holden. Mr Petrie admitted entering into an
53
arrangement with Mr Holden whereby Mr Petrie obtained finance in his own name to
purchase a saloon car. This car was then substituted on to Mr Holden’s licence and his
taxi licence plate was affixed to the car. It would appear that the vehicle was insured in
Mr Holden’s name. Mr Petrie then used the taxi as his own. There is no information
given as to whether Mr Petrie paid for the use of this plate.
Mr Holden died and Mr Petrie made an arrangement with the executors so that he
continued to use the taxi as his own. An attempt was then made to transfer the
insurance for the vehicle into the executor’s name. It is believed that this was the point
at which the police became aware of Mr Petrie’s use of the taxi. Mr Petrie was then
interviewed by the police, and admitted that he had been hiring Mr Holden’s plate. Mr
Petrie’s solicitors later tried to claim that this admission was only given by Mr Petrie to
avoid facing fraud charges.
Mr Petrie then applied for the grant of a taxi licence in his own name. The police
objected to his application, based on the foregoing circumstances. The objection stated
that Mr Petrie had been (1) “Exercising control and management over taxi licence 429 Ford Mondeo, R559
FBW whilst not being the true licence holder.
(2) Fraudulently declared to Paton's Insurance Services that the executors were
requiring insurance to extend the licence of the late Mr Holden.
(3) Admitting to "hiring" taxi licence 429 from Stephen Holden for "about two years".
The Committee considered that Mr Petrie was not a fit and proper person to hold a taxi
licence and refused his application. Mr Petrie then appealed to the Sheriff Court.
The Statement of Reasons stated –
“The Committee refused your client's application on the ground that he was not a fit and
proper person to be the holder of a taxi licence. This was because the Committee
accepted the circumstances detailed in the appendix to the enclosed objection by the
Chief Constable were essentially accurate. The applicant's agent sought to submit that
any admission of plate hiring was produced only under threat of criminal charges for
fraud. The Committee did not accept this version of events. Moreover, the Committee
noted, in any event the business relationship between the applicant and the late Mr
Holden as outlined to them by the applicant's agent confirmed, essentially, the "plate
hiring" arrangement, which indicated his disregard for the proper system of taxi
licensing in Dundee and, therefore, his unfitness to hold a licence.”
During the hearing of the appeal the Council’s solicitor stated – “there had been a limit
on the number of taxi operator's licences and consequently a waiting list of persons who
sought such licences. Mr Holden's licence should have been handed in on his death but
the appellant had effectively owned and operated Mr Holden's taxi over a period of 2
years up to and beyond Mr Holden's death”.
In his decision the Sheriff stated – “It was clear both from what had taken place at the
hearing and the representations made before me that the appellant accepted he had
54
effectively operated the late Mr Holden's taxi for a period without seeking to regularise
matters with the Council”. The sheriff then continued – “Nevertheless at the time the
application was considered the Committee had before them information which appeared
to directly impinge upon the fitness of the applicant to hold a taxi operator's licence. It is
clear from the statement of reasons that the appellant's explanation was considered but
the respondents concluded the police objections were accurate since the actuality was
not in dispute. The appellant confirmed that he had effectively operated a taxi without a
licence and had for a period been circumventing the policy, rules and regime which the
respondents had been operating“.
The Sheriff upheld the Committee’s decision to refuse Mr Petrie’s application.
(d) The Apparent Lack of Legal Debate in the Petrie case on the Definition of
“Operation” of a Taxi.
Due to the way courts are organised, a decision on a particular point by one Sheriff
does not bind another to make the same decision. Cases decided at other Sheriff
Courts are, however, often brought to a Sheriff’s attention by parties to assist the Sheriff
in reaching his own decision.
It is usually true that solicitors acting in a particular case will concentrate on particular
points of argument in front of a Sheriff and other points will not be argued. Each case is
different and will be decided on its own merits.
In the Petrie case, the solicitor acting for Mr Petrie, focussed his arguments on (a) The fact that the Committee had recently allowed Mr Petrie to continue to hold his
taxi driver’s licence, notwithstanding the police having presented the same letter of
objection. The Sheriff remarked that the Committee had correctly considered that a
person could be suitable to hold a taxi driver’s licence, but unsuitable to hold a taxi
licence.
(b) The claim that the admission of hiring by Mr Petrie had been given under a threat
from the police that he would face criminal charges for fraud and the Committee
ought not to have accepted this admission. The Sheriff indicated that there had
been no challenge to any of these matters at the Committee and, therefore, the
Committee was quite with in its rights to accept the admission.
In the Corporate Director’s opinion, it is unfortunate that the whole question as to what
constituted “operation” of a licence was not highlighted. This would have been of great
assistance to our attempt to analyse the problem of hiring in Aberdeen. This was not, of
course, the task of the parties in the Petrie case and they simply dealt with the case as
they saw fit from their own perspective.
Despite the lack of debate in the case on a definition of “operation “, it is, in the
Corporate Director’s opinion, of interest that Mr Petrie did not challenge the argument
that, by hiring the plate, he would be regarded as being the operator of the taxi in his
own right.
55
It is the Corporate Director’s opinion that the Petrie case shows that the Sheriff Court in
Dundee appears to be supporting the attempts by the Council and Tayside Police to
counter the hiring of plates, but that it does not provide much direct assistance to the
situation in Aberdeen.
Other Scottish Councils
Time has not permitted detailed examination of other Scottish Council’s approaches to
such issues. Many of these other Councils do not have numerical limits on the number
of taxi licences they will grant nor do they have a mixture of wheelchair accessible taxis
and saloon cars in their fleet.
The only Council which has conditions similar to our conditions 29/30 and 24/25 is
Aberdeenshire Council, in respect of the former Gordon District Council area.
Conclusions
It would appear that the practice of self-employed taxi drivers working under another
person’s taxi licence is quite widespread in the UK. The practice also appears to be
widespread in Edinburgh and Dundee, with the former apparently willing to tolerate the
practice via the “corporate” licence scheme and the latter endeavouring to curtail the
practice.
There, unfortunately, is little assistance available on the underlying question in Scotland
of whether some or all of these drivers are regarded as the “operator” of a taxi. The next
section of this paper attempts to provide such an interpretation.
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SECTION 6
A REASSESSMENT OF THE LEGAL ISSUES RELATING TO THE “HIRING” OF TAXIS
AND PRIVATE HIRE CAR LICENCES
(a) The Hiring/Lending of Vehicles Compared to the Hiring/Lending of Plates
The hiring or lending of vehicles for use as taxis or private hire cars is legally
acceptable. Any person can hire/lease or borrow vehicles as they see fit. Such a person
is no different from a finance company who leases vehicles to others.
The freedom of taxi owners to do as they wish with their assets was a comment often
made by taxi licence holders objecting to the conditions prohibiting the hiring or lending
of taxis. The Committee, however, has never had any real objections to taxi or private
hire car licence holders selling, leasing, hiring or lending their vehicles. Their insistence
has always been that these licence holders should then give up the licence and the new
owner should apply for a licence in their own name.
It is the Corporate Director’s opinion that the real concern for the Committee should be
the hiring of plates to drivers, who should hold the taxi or private hire car licence in their
own name and that reference to the prohibition of hiring or lending of taxis or private
hire car vehicles is due to continued reference to the hackney licensing scheme in
operation on Aberdeen before 1984 and is therefore misleading.
(b) The Concept of a “Legal Persona” or Business Unit
Within certain limitations, it is up to anyone involved in the taxi or private hire car trade,
whether they are a driver, radio control centre or vehicle provider, to decide how they
wish to organise their business affairs. Once they have made this decision they have to
accept certain consequences, including an obligation to make full disclosure of the
decision to all relevant bodies and individuals. They should, for example, notify the
Inland Revenue and Customs and Excise, the vehicle insurers, so that the insurers are
fully aware of the exact way the insured person intends to operate, in order to properly
assess the risk and provide appropriate insurance cover.
One of the consequences of the decision on how the business is to be organised is that
consideration should be given on how the business will be dealt with by the licensing
authority. The onus is on the businessman to ensure that the business is licensed
appropriately.
It is important that the businessman does not commence business without the correct
licence being in place. It is not acceptable to provide different accounts of how the
business id organised different persons.
In simple terms, there a several different ways to organise a business –
(a) A Sole Trader This is the simplest route and involves a person running his business
directly. Any money received form his business and any expenses incurred are
accounted for in a profit and loss account. At the end of each year, any profit is
57
declared to the Inland Revenue. The business has a balance sheet, which records
the capital invested by the individual and any business assets and liabilities. If he is
successful, the business will grow. If the business is unsuccessful, it will incur
losses.
It is important to note that, if the sole trader’s creditors take action to recover debts
due by the business, they can (subject to certain restrictions) have access to the
sole trader’s whole assets, including his personal property. This is because the law
regards the individual and his business as being the same legal personality or
persona.
(b) Limited Liability Company To avoid one’s whole personal assets, as well as one’s
business assets, being at the mercy of creditors, a Limited Liability Company can
be set up. Shares will be issued to the directors of the business, all the assets of
the business belong to the Limited Liability Company, and all income from the
business will likewise belong to the Company. If the business fails, creditors can
only have access to the company’s assets. The creditors cannot seize any of the
shareholder’s personal assets. This is because the company is regarded in law as
having a separate legal personality.
(c) Partnership Individuals can co-operate and set up a partnership. A partnership
agreement is drawn up and this states how the individual partners will arrange
matters between them on such matters as who will provide capital and how profits
will be shared. In Scotland, a partnership is regarded as a separate legal persona.
All the business assets belong to the partnership and all income likewise belongs to
the partnership. There is an important difference, however, from a limited liability
company in that creditors can proceed against any of the personal assets belonging
to the individual partners. There are accordingly risks in operating as a partnership.
These examples cover the main types of business organisation encountered in the taxi
trade. The concept of an individual, company, or partnership having a legal personality
is a well-established and important legal principle. It not only has a bearing on the way a
business is taxed, but also as regards the relationship which the business has to the
outside world, including creditors, employees and other business units.
Not every person in work runs a business on their own account –
(a) Employees work on behalf of an employer. Income from the business belongs to the
employer. The employee receives a wage and if, at the end of the day, his
employer’s business collapses, the employer’s creditors have no right to the
employee’s assets.
(b) Agents act on behalf another person, referred to as a principal. They effectively act
as a stand in on behalf of the principal. Any money received in the course of the
business belongs to the principal and the agent will receive a commission. Should
the principal’s business fail, creditors have no right to the agent’ personal assets.
All of this can appear complicated, but most people in the taxi trade are well aware of
the way their business affairs are arranged. It is a simple matter of whether the
individual receives a wage as an employee, or is self employed. These principles also
58
form the basis of the way individuals and businesses are assessed for liability to pay tax
or VAT.
The main point to be made is that each separate legal persona or business unit is
regarded by the law as distinct from other legal bodies.
A substantial body of case law has developed over many years to try to establish the
boundaries between different legal personas and business units.
The major factor as to whether a person is an employee or independent contractor is
focussed on the control that a master has on his servant. In the modern working
environment, it is recognised that the direct control exercised by an employer on an
employee may be so remote as to make a clear definition impossible. In these
circumstances, it is recognised that each situation needs to be examined on its own
merits and it is essential to look at the exact terms of any contract between the parties,
their actions and any surrounding factors. It is recognised that the way that a person
receives payment for his services can be important.
(c) The Recognition of Separate Legal Personalities in Licensing Law
Because the above principles are so well recognised, licensing legislation assumes it
will be read alongside other branches of law as it does not operate in a vacuum.
Licensing legislation sets out the mechanisms as to how applications for licences are to
be made and how licences are to be held by different types of legal personalities.
Schedule 1 of the Civic Government (Scotland) Act 1982 provides for the following in
relation to all licences, including taxi/private hire car licences.
(a) The Sole Trader. This is the most usual case. An individual is referred to in the Act
as “a natural person” and the licence is granted to and held by him as an individual.
An individual licence holder has the option under Paragraph 1 (b) to nominate an
employee or agent who is carrying on the day to day management of the activity
covered by the licence.
(b) The Non Natural Person. A partnership or limited liability company are not natural
persons and, in terms of Paragraph 1 (c), the licence is granted to the company or
partnership. In this case it is a requirement that an actual person be nominated as
the employee or agent to carry on the day-to-day management of the licensed
activity.
If there is a nominated manger, in terms of 5(8), this manager is a joint licence holder
with the main licence holder.
All of the above takes account of the various ways a taxi or private hire car business
could be organised.
(d) The Hiring of a Vehicle for Use in a Business
It is well recognised in law that one legal personality or business unit can hire or lease
an asset, such as a vehicle, from another legal personality or business unit. Each party
to this transaction has clearly defined legal status and responsibility. The hirer of the
59
vehicle has to pay the required rental throughout the period of the hire and, at the end
of the period of the hire, return the vehicle to the owner. The hirer of the vehicle is
entitled to use the vehicle for the benefit of his own business as he sees fit. The return
to the owner of the vehicle is the rental he receives.
It is possible for the lessor and the lessee to agree to make different arrangements as to
the way the vehicle is used, or who is to benefit from its use. Such arrangements are
unusual in practice and, in terms of law and recognised accountancy/taxation practice,
could result in the transaction being regarded for legal/accountancy/taxation purpose as
less of a hire agreement and more of a short term partnership or joint venture.
(e) Who “Operates” a Taxi or Private Hire Car?
It is important for legal, accountancy and taxation purposes to be clear who or what
legal persona or business entity is carrying on a particular business activity, such as the
use of a taxi or private hire car.
Of relevance in this context is - “Who is the operator of the taxi or private hire car in
terms of the Section 10(1) of the Civic Government (Scotland) Act 1982?”
Given the lack of an express definition of “operator” in the 1982 Act and the lack of
decided cases on this point, it is necessary to examine the normal meaning of the word
“operate”.
(1)
Ordinary Meaning of “Operate”
Chambers 20th Century Dictionary defines “operate” or “operation” as
including – “ to work, to be in activity, carry on business, to bring about,
cause to occur, to conduct or run, influence”. The word is derived from the
Latin “opus” meaning “work”.
(2)
The 1982 Act
Operate vis-a-vis Driver – The 1982 Act clearly intends there to be a
distinction between someone who just drives a taxi or private hire car, as
opposed to one who operates it. An operator therefore is something other
than a driver.
It is well recognised in case law that a person may be fit to hold a taxi
driver’s licence, but be unfit to hold a taxi licence.
The Responsibilities of Operators under the Act – As a licence holder,
the operator of a taxi or private hire car has many responsibilities under the
1982 Act including ensuring that the vehicle meets the required standards
and compliance with licence conditions. These duties rest on him, rather
than the driver. He shares certain duties with the driver, such as not charging
more than the maximum fare.
The operator, but not the driver, also has the right to be consulted on the fare
tariff to be set and to appeal the outcome.
60
The Vetting of “Operators” – The main purpose of the licensing of taxis
and private hire cars and their drivers under the 1982 Act is the protection of
the public. The Licensing Committee has power to grant and renew licences
and is required to form a view as to the suitability of persons to hold licences.
It is, therefore, a matter of fundamental importance to the Licensing
Committee that they are aware of the identity of a licence holder or applicant
for a licence.
Paragraph 1 of Schedule 1 of the Act provides that an applicant for the grant
or renewal of a licence must provide his full name and address and the name
of any manager to go on the licence as joint licence holder. If the licence is
to be held by a partnership or limited company he has to provide the full
name and address of all partners, directors and other persons responsible.
Paragraph 5(3)(a) of Schedule 1 provides that the Committee can refuse to
grant or renew a licence if the applicant, a director, partner or any other
responsible person is not a fit and proper person to hold a licence.
Paragraph 5(3)(b) of Schedule 1 entitles the Committee to refuse to grant or
renew a licence, if the activity to be licensed is to be carried on for the benefit
of a person, who would not be regarded as a fit and proper person to hold a
license in their own right. This entitles the Committee to take action against
persons hiding behind another person’s identity. For example, an
undesirable person could make his wife apply for a licence in her name, but
he would ultimately benefit and control the licensed activity. The Committee,
provided it became aware of such a situation, could refuse to grant a licence
to the wife.
Paragraph 9 of Schedule 1 requires licence holders to notify the Council
where there is a material change in circumstances affecting the holder of a
licence, or the activity to which the licence relates. “Material change” is
defined as “including any material change in the particulars given in the
application for grant or renewal”. The purpose of notification is to provide the
Council and the police with an opportunity to see if they are satisfied that the
change has not resulted in the licence holder, or persons associated with
him, ceasing to be fit and proper persons. In these circumstances the licence
could be suspended or removed.
The point of all of the foregoing is that the Committee and Police require this
information so they can ascertain the fitness of a person operating a taxi or
private hire car. The interests of the public are not protected if the Council
and the police have information withheld from them which would be relevant
to the operation of a taxi or private hire car. It is not for the licence holder or
any other person to actively deprive the Council or the police of relevant
information and prevent them carrying out their statutory duty in ensuring the
fitness of those persons operating taxis or private hire cars. If in doubt as to
whether a change in circumstances are material or not, licence holders
should err on the side of caution and declare changes.
61
There Can Only be One Operator at a Time
The Act provides that there can only effectively be one operator of a taxi or
private hire car at any one time. Persons wishing to operate the vehicle at
different times would have to organise themselves so that the licence for the
vehicle was held under the umbrella of a partnership or company. It is not
permitted for example, for there to be different operators at different times of
the day,
The Cessation of an Operator’s Interest and the Creation of a New
Operator
A licence is granted for a particular period or until such time as the licence
holder surrenders the licence. Paragraph 13(2) of Schedule 1 requires the
licence holder to return his licence within 7 days of his giving up the relevant
activity.
The Importance of the Council and Police Being Aware of the New
Operator
It is the Corporate Director’s view that the terms and purpose of the 1982 Act
are such as to make it of paramount importance that the Committee and
police are aware that a new person has become the operator of a taxi or
private hire car. Failure by the existing licence holder to disclose this
information, and the failure by the new operator to apply for a licence in his
own name, deprives the Committee of its ability to exercise its statutory
function.
(3)
An Attempt at a Legal Definition of “Operator”
In light of all of the foregoing, it is the Corporate Director’ opinion that, a
person who conducts his taxi/private hire car business as follows would
indicate that that person should be regarded in law as an independent
contractor/business entity and therefore, the operator of that taxi or private
hire car, He would therefore require to hold the taxi or private hire car licence
for that vehicle in their own name.
1.
Works a taxi on his own account,
2.
Keeps all fares collected as his own,
3.
Is liable for all his own business expenses,
4.
Decides when and where he wishes to work,
5.
Declares to the Inland Revenue/Customs and Excise that he is self employed, and produces an annual profit and loss account to enable
the amount of Income Tax/VAT due to be calculated,
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6.
There are no third parties that claim that this person is their employee
or agent, or who declare the person’s fares or profits as the third
parties.
(f) The Self-employed Taxi Driver becoming the “Operator” of the Taxi or Private
Hire Car
Counsel’s opinion was sought by the Council, following the Christie case in 2001, on
whether there was an argument that taxi/private hire car licence holders, by leasing or
hiring their vehicles to effectively self-employed drivers, meant the drivers would be
regarded in law as the operator of the vehicle in their own name. He confirmed this as
follows –
“An operator who leases his taxi out to another person has effectively divested himself
of the business of making taxis available to the public. since his only interest in the taxi
is in getting a rental income from it, in much the same way as a garage or vehicle maker
might get if they leased a taxi, or indeed any other vehicle, to another person. The fact
that he holds an operators’ licence does not effect the legal relationship between lessor
and lessee. He has no control over the lessee’s business and cannot tell him how,
when or where, to operate the business.
A driver who leases a taxi from another, whether or not that other person is a taxi
operator, and uses that taxi as a business vehicle (i.e. by plying for hire and accepting
bookings, whether directly or via a radio service, for which he pays a regular fee) is a
taxi operator. The only relevance of whether or not the driver holds a taxi driver’s
licence is that, if he drives the vehicle himself, he will be guilty of the statutory offence of
being an unlicensed taxi driver if he does not hold a taxi-driver’s licence. On the other
hand, if he operates the taxi (whether or not he actually drives it) he will require a taxi
operator’s licence. In respect of the (Christie case) it would seem that the taxi driver
involved was in effect a self-employed unlicensed operator.
Thus Condition 29 (the prohibition of hiring) may well be unnecessary in relation to the
lease of taxis to unlicensed operators, since it only seeks to reinforce the above
position. “
(g) Counter Arguments to the above Interpretation of “Operator”
The above analysis or interpretation is not accepted by many in the trade, including
solicitors acting for licence holders hiring plates.
Some of the counter-arguments, which have been suggested to date, are set down
below. There may be other arguments and the Corporate Director would welcome
these.
(1) All Vehicles and Drivers are Licensed
The legislation provides for vehicles and drivers to be licensed and that neither the
Council or the Police should concern themselves with the business relationship
between the driver and the plate holder.
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It is the Corporate Director’s view that the licensing requirements on Scotland are such
that these are matters which Parliament clearly intended should be of interest when the
1982 Act was passed. Parliament had the opportunity to adopt the English Hackney
licensing regime, but choose not to.
Parliament, therefore intended the Council and the Police to be aware of who was
behind the licence. The Council and Police could then decide whether that legal
persona was fit and proper to hold a licence.
(2) Differences in Declarations for Taxation/Accountancy and Licensing Purposes
Self-employed drivers and persons hiring out plates appear to be making declarations
to the Inland Revenue and Customs and Excise whilst making different declarations to
the Council on the way the use of the taxi or private hire car is organised. No adequate
explanation for this difference of approach has ever been offered.
Plate holders, middle-men and large companies involved in hiring or lending plates
declare that drivers are self employed so that they do not end up having to pay Income
or Corporation Tax on fares collected or to have to pay VAT on fares collected by all the
drivers hiring vehicles from them.
The Corporate Director is of the opinion that such drivers and plate holders cannot
genuinely make different declarations to different bodies and should be required to
decide on one particular business arrangement and declare that both to the taxation
and Licensing Authorities.
(3) That Plate Holders and Drivers Have Entered into Special Business Arrangement
It is often claimed that drivers and plate holders have entered into some sort of
business arrangement such as a partnership, a joint venture or that the drivers have
become directors of the plate holding company. It is the Corporate Director’s opinion
that it is legally acceptable for individuals to organise their business affairs as they see
fit, but they must ensure that this is reflected on the licence.
Most, if not all, of these business arrangements would involve a change in the legal
personas or business units and consequently, the licence. Due to the various
implications (having to provide a wheel chair accessible taxi, the delay, cost and loss of
control of the plate, the making of new licence applications are strenuously avoided.
(4) Intascot plc v Inverclyde District Council (1992 G.W.D.21 1238)
This case has not been specifically raised in counter argument, but the Corporate
Director considers it to be of interest, as it appears to be the only Scottish case which
touches, somewhat unsatisfactorily, on the hiring issue.
This case involved a limited company, Intascot plc, being established with the express
intention of acquiring existing taxi businesses in Inverclyde. The company then intended
to encourage persons wishing to enter the taxi trade to enter into what Intascot referred
to as “Franchise Agreement” with the company.
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It is important to note that the term “Franchise Agreement” covers a wide range of
agreements. Each agreement requires to be examined in detail to appreciate its terms.
The most common example of a franchise agreement is where a company has a well
known trading name or brand. The company does not wish to own and run shops
because of the associated risks of operating a large venture. If the trade name or brand
is sufficiently well recognised, individuals are willing to pay the company to open a
branch. The individuals run their own self-contained business and keep all the profits
from the operation. All that the company would receive would be the initial franchise fee
plus any sums agreed.
It is important to the company that its trading name or brand retains its value and that it
can take steps to stop these individuals harming the brand name if they run the
business badly. Accordingly, a franchise agreement is drawn up between the company
and the individual detailing both parties obligations.
In this particular case, Mr McGee took up the opportunity to enter into an agreement
with Intascot.
Intascot applied to Inverclyde Council for a taxi licence for a vehicle which appears to
have belonged to Mr McGee. The taxi licence was held in the name of Intascot plc, with
Mr McGee nominated as the employee or agent who was to carry on the day to day
management of the taxi.
The Licensing Committee was unhappy with the proposed arrangement. The
Committee refused the application and a statement of reasons was provided. Intascot
appealed to the Sheriff Court.
The Committee then attempted to introduce an additional argument before the sheriff,
which was not canvassed before the Committee. This was to the effect that the
consequence of the agreement between Intascot and Mr. McGee was that Intascot
would be “renting” the taxi licence to Mr McGee, and that Intascot “would not be
engaged directly in the running of a taxi business, but rather would be renting out or
franchising the benefit of any taxi licences acquired.”.
The Sheriff decided that these arguments would not be discussed before him, and that
he would limit his consideration to the arguments contained in the Statement of
Reasons.
The Franchise Agreement is, in the Corporate Director’s opinion, quite unusual, in that it
appears to be a Franchise Agreement of the usual type, but incorporating clauses as
regards the maintenance of the vehicle and as to the role of Mr McGill as “an agent”.
This appears, in the Corporate Director’s opinion, to have been done so as to give the
arrangement the appearance of compliance with the licensing regime.
(a) Driver as Agent - Throughout the agreement Mr McGee was referred to as the
agent of Intascot. He had authority for day to day matters in connection with the
operation of the taxi.
(b) Fares - There is no mention of fares in the franchise agreement.
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The Committee expressed concerns that Intascot did not have direct control over the
operation of the taxi and Mr McGill would not be directly responsible as operator to the
Council in terms of the 1982 Act.
The arguments before the Sheriff were based on the control of the taxi. The Sheriff
concluded that it was not specified in the 1982 Act that it was essential that Intascot had
to be directly in control of the taxi. He was of the view that the Committee could not
object to Mr McGee having control of the taxi through a contract. The Sheriff overturned
the Council’s decision to refuse the licence application.
It is the view of the Corporate Director that the real issues were not raised before the
Sheriff. The Statement of Reasons (at page 13) stated “ The nature of the proposed
franchise agreement was such that the franchisee could not be described as an
employee or agent of Intascot. He would be operating a taxi without holding a licence,
and that the Act did not permit. Nor did it permit the renting out of a licence”.
The foregoing key statement was not argued in court nor addressed in the Sheriff’s
judgement. Partly prompted by other arguments, Counsel acting for Intascot led the
Sheriff away from this point by concentrating on other issues.
It is the Corporate Director’s opinion that this case is of little assistance in the question
as to who is the operator of a taxi. It only confirms that it is possible for a driver to be
termed an agent of the plate holder. The failure to argue that Mr McGee was to retain all
fares collected, meant that the Sheriff did not address the point that Mr McGee would
be acting as an independent business person on his own account, separate from
Intascot.
Suggested Strategy for Attempt to Reduce the Hiring of Plates
1. Removal of Conditions 29/30 and 24/25
Conditions 29/30 and 24/25 were designed to prevent the hiring of vehicles. They were
more appropriate to the licensing of hackneys in Aberdeen prior to 1984 and do not take
into account the changes to taxi licensing in Scotland introduced in 1984. The
conditions do not now adequately address the real issue, which is the operation of taxis
or private hire car vehicles by the wrong persons. It is recommended that these
conditions are now unnecessary and should be removed.
As self-employed taxi or private hire car drivers may be “operators” of taxis and private
hire cars. They should therefore hold the taxi or private hire car licence in their own
name. This is such a fundamental principle that it is not necessary for the licence to
contain a condition to this effect. Guidance notes attached to application forms could
quite easily contain this information.
2. Consequences for a Driver and Plateholder if Taxi or Private Hire Car Operated
without a Licence in the Correct Name
Criminal Offences
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S 7 (1) of the 1982 Act provides for fine up to £5,000 where a licensed activity is
undertaken without a licence.
S 7 is a general offence section covering all types of civic licences. S 21 contains
specific additional offences relating to taxi or private hire car licences.
S 21 (1) provides for a fine of up to £2,500 if any person –
(a) operates, or permits the operation of, a taxi within an area in respect of which its
operation requires to be but is not licensed…., or
(b) picks up passengers in, or permits passengers to be picked up by, a private hire
car within an area in respect of which its operation requires to be licensed but is
not licensed … that person shall be guilty of an offence.
It is a matter for the police to decide whether to report plate holders or drivers for
prosecution.
Actions the Licensing Committee Could Take
Taxi or Private Hire Car Driver
The Committee could consider that a taxi or private hire car driver who knowingly
breached the terms of the Act by operating with out a taxi or private hire car licence in
his own name was not a fit and proper person to hold a taxi or private hire car licence. It
is recognised that drivers licences are more concerned with the direct safety of the
public, but there may be an argument that, the deliberate concealment of business
arrangements that went along with an unlicensed operation, could render the driver
untrustworthy and therefore unsuitable to hold a taxi or private hire car driver’s licence.
The Petrie case indicates that the Committee could refuse an application for a taxi or
private hire car licence from a driver who had, in effect, been operating a vehicle
unlicensed.
Taxi or Private Hire Car Licence Holder
The Committee could regard the licence holder, who allowed the use of his plate by a
taxi or private hire car driver in an unlicensed operation, as not being a fit and proper
person to hold a licence. The Committee would be on firmer ground if the plate holders
had received a written warning that they should cease such activities and they
continued regardless.
3. Difficulties in Obtaining Evidence
All previous investigations into breaches of Conditions 29/30have been carried out by
the Taxi Inspector interviewing drivers and licence holders on their business practices.
Most information came from drivers. There was no recognition at that time that drivers
were unlicensed and were therefore committing a criminal offence.
It is believed that, once it becomes generally known that taxi and private hire car drivers
could face prosecution for acting as unlicensed operators and could have their taxi or
driver licences removed by the Committee, statements would not be forthcoming from
drivers.
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The Taxi Inspector has indicated that, given police priorities, it is unlikely that
widespread investigations into the business activities of plate holders and drivers could
take place.
In the opinion of the Corporate Director, even if the police obtain evidence as to the
business arrangements, accounts and tax records of companies and individuals, each
case would require to be examined on its own merits. Legal officers of the Council
would be heavily involved in preparing the relevant cases, in dealing with hearings
before the Committee and any resultant Statements of Reasons/Appeals.
It is not the role of Council officers to investigate allegations of unlicensed operation and
to obtain evidence. It is therefore recommended that the Committee raise these matters
with Grampian Police and request a review of police strategy in dealing with the hiring
of plates and unlicensed operation of taxis.
4. Elimination of Economics Underlying the Hiring of Plates
The main reason for the practice of hiring plates appears to be to enable new operators
to avoid having to make an application for a new licence in their own name and
therefore be able to use a saloon car, rather than a wheelchair accessible vehicle.
It is the Corporate Director’s opinion that, as it will be difficult to detect such activities, it
may be more effective to eliminate the main reason for the practice by requiring all taxi
operators to use a single class of vehicle, either saloon cars or wheelchair accessible
vehicles. If all vehicles were wheelchair accessible, for example, there would be no
incentive for drivers to pay saloon car taxi licence holders.
It is believed that the hiring of plates would be reduced, but it is unlikely to be entirely
eliminated. Some drivers will prefer short-term arrangements. Drivers may also be
willing to pay to jump the waiting list for taxi licences. The Committee may wish to keep
matters under review if a long waiting list for taxi licences results in an increase in plate
hiring,
5. Fast Track Procedures for Companies Offering Packages of Radio/Vehicle to
Drivers
There have been discussions as to a “fast track” application procedure to accommodate
companies offering a “package” to drivers of the lease of a vehicle and a radio. This
involves the new driver being placed on the licence as the nominated manager, whilst
the original plate holder remains on the licence. The Corporate Director has concerns
as to the legality of such arrangements as the driver would, in reality be the sole
“operator” of the vehicle.
There could be scope to speed up all taxi licence applications but this would only work if
there was no numerical limit placed on the number of taxi licences issued and no Taxi
Interview Panel.
It is also thought that companies would be unwilling to enter into proper partnerships or
joint ventures with drivers. Applications for new licences in the name of the partnership/
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joint venture would require to be made, wheelchair accessible vehicles provided and
there would be taxation and VAT consequences for the companies and drivers.
6. Information to All Drivers and Plate Holders
As the matter of who should hold a taxi or private hire car licence has never been
highlighted to the trade previously, it is recommended that, before any future
enforcement action is taken against persons believed to be engaged in this activity, it
would be preferable to encourage them to regularise their operations by applying for
licences in their own name.
It may be necessary for the Committee to decide whether it should allow applicants
special dispensation to allow them to continue to use existing saloon taxis for a period.
It has to be borne in mind, however, that many drivers have purchased a wheelchair
accessible vehicle and may feel aggrieved if dispensation is granted to drivers who
hired plates to avoid operating wheelchair accessible taxis.
7. Suggested Strategy if Definition of “Operator” is Not Accepted by the Courts
Members have to be aware that, notwithstanding the Corporate Director’s analysis of
the hiring of plates and attempt at a definition of “operator”, and the support given to this
analysis by Counsel acting on behalf of the Committee, this interpretation may not be
accepted by the Courts. The courts could be persuaded by arguments for persons
engaged in hiring plates and find in their favour. Nothing is certain in court actions and,
as far as possible, litigation should be avoided. The point between the parties is,
however, an important one and it may be that a test case would be required to
conclusively establish the position. There appears to be little scope for meaningful
compromise.
If it transpires that plates can be hired to drivers by the taxi or private hire car licence
holder, the Committee would have to accept the position and reconsider its policies on
such matters as the limitation on the number of taxi licences issued.
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SECTION 7
THE UNDERLYING LEGISLATION AS TO THE POWER OF COUNCILS TO REQUIRE
PARTICULAR TYPES OF VEHICLES AS TAXIS OR PRIVATE HIRE CARS IN TERMS
OF THE CIVIC GOVERNMENT (SCOTLAND) ACT 1982
(A) THE ABILITY OF COUNCILS TO REQUIRE TAXIS TO BE WHEELCHAIR
ACCESSIBLE
It is the view of the Corporate Director that the Licensing Committee has the appropriate
legal powers, under the Civic Government (Scotland) Act 1982, to require taxis to be
wheelchair accessible.
The Act does not expressly state that Committee can make this requirement. Any policy
made by the Committee would require to pass the reasonableness test. It is the
Corporate Director’s view that –
(a) the terms of the Act,
(b) case law,
(c) the fact that the Edinburgh and Glasgow policies of requiring taxis to be wheelchair
accessible has not been legally challenged, and
(d) the decision by the Scottish Executive not to use powers available to them to make
Regulations prohibiting Edinburgh or Glasgow requiring wheelchair accessible
fleets,
(e) English court decisions in the 1990’s on similarly worded section in their legislation
supporting councils requiring all hackney carriages in their areas to be wheelchair
accessible,
would indicate that such a policy would tend to be regarded as reasonable by the
courts.
Schedule 1 of the Act sets down general rules for Committees to follow in deciding
whether a vehicle used in a particular activity is suitable. Sections 10 and 20 of the Act
contain particular rules relating to taxis.
Paragraph 5(c) of Schedule 1 provides grounds for refusing a licence - where the
licensing authority is of the opinion…that the vehicle is not suitable or convenient for the
conduct of the activity having regard to –
(i) the character or condition of the vehicle;
(ii) the nature and extent of the proposed activity;
(iii) the kind of persons likely to be in the vehicle;
(iv) the possibility of undue public nuisance; or
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(v) public order or public safety; or
Paragraph 5(d) of Schedule 1- there is other good reason to refuse the application”.
Section 10(2) - “A licensing authority shall not grant or renew a taxi licence or private
hire car licence unless it is satisfied that the vehicle to which the licence relates is
suitable in type, size and design for use as a taxi or private hire car, as the case may
be, and is safe for that use.”
Comments –
(a) Convenience
The use of the “convenience” test is problematic. The question is “convenient to
whom?” Is this the general public, the travelling public, or some other sector of the
public, e.g. disabled persons in wheelchairs?
“Convenience” also conveys a sense of “ease of use “or “lack of difficulty” in using
the vehicle, rather than a sense of “impossibility” in its use. Comfort may be
relevant here. The use of a “convenience” test, rather than a “suitability” test,
implies that the Committee could reject an otherwise suitable vehicle if it was of the
opinion that it would be, to some degree, difficult or awkward to use.
The fact that a disabled person has a certain level of difficulty in using a particular
vehicle might entitle the Committee to refuse the licence on the grounds of
inconvenience.
(b) Suitable in type, size and design
It is intended that Councils can exercise discretion as to the type, size and design of
vehicles that are considered suitable for use as taxis or private hire cars.
The main purpose of the Civic Government (Scotland) 1982 is the protection of the
public and the prevention of crime and disorder. As originally drafted, there are no
specific references to disability issues. The recent case of Stewart –v- Perth and
Kinross Council has highlighted the importance of bearing in mind the underlying
purpose of the legislation behind the licensing system and the risk that Councils
face if they introduce requirements beyond those authorised.
The recent case in the Inner House of the Court of Session of William Hill
(Caledonian) Ltd v Glasgow City Licensing Board (2003 GWD 9 241) is of particular
interest as regards “suitability” and accessibility for disabled persons
In this case, Glasgow City Licensing Board refused to grant a Betting Office Licence
for a first floor premises as there was no disabled access. William Hill considered
that the Board were seeking to impose a requirement on them that did not exist in
statute. The Board stated that they were entitled to have regard to changing social
attitudes and, in particular, the fact that society considers that facilities should be
made available to disabled persons.
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In Paragraph 17 of his Opinion, Lord Kirkwood stated – “ Further, we can see no
reason in principle why a Board, in considering whether the location of proposed
premises render them unsuitable for use as a betting office, should not be entitled
to have regard to the effect which the location would have on the ability of potential
customers to gain access thereto……… Each case must, of course, depend on its
own particular circumstances. In the present case the only adverse consequence of
the location of these premises, which are on the first floor and cannot be provided
with a lift, is that non-ambulant disabled person would not be able to gain access.
The position of the Board was that they were entitled to have regard to changing
social attitudes and, in particular, the fact that society considers that facilities should
be made available to disabled persons.
Accordingly, the question which arises sharply, and which we have found to be
attended with some difficulty, is whether the Board were entitled to hold that the
premises, which are not said to be unsuitable in any other respect, are not suitable
because one particular and limited class of persons would be unable to gain
access. The conclusion which we have reached is that a licensed betting
office is intended to be open to members of the public generally and that the
fact that non-ambulant disabled people would not be able to gain access to
premises, due to its location, is a factor which the Board were entitled to take
into account and on the basis of which they were entitled to refuse the
application”.
This case relates to premises not being suitable because of their location. It is
arguable that it would be in order to apply the decision to the question of whether a
vehicle is suitable given its character or condition and also given its type, size and
design. The Licensing Committee could argue that a saloon taxi was unsuitable, as
it is intended that taxis should be available to members of the public generally. The
fact that non-ambulant disabled people would be unable to gain access to the
vehicle (without leaving their wheelchair), due to the car design, could entitle the
Committee to decide that the saloon car was unsuitable.
(c) Safety
A vehicle can be regarded as unsuitable or inconvenient having regard to public
safety. Checks are in place to ensure that all taxis are safe for the carriage of their
passengers. Ramps or lifts, if fitted, have to be safe and taxi drivers are required to
give such assistance as they are able to provide, to aid passengers getting into and
out of vehicles.
Persons in wheelchairs are members of the public and their transportation presents
several difficulties. Overall, is it preferable for a person in a wheelchair to remain
seated in the wheelchair for the journey rather than to be removed to the car seat
and the process reversed on arrival? This depends on the passenger, the type of
wheelchair and the manner in which the chair and passenger are secured in the
vehicle.
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(d) Other good reasons for refusal
It could be argued that failure to provide a wheelchair accessible taxi was in itself
sufficient reason to refuse a licence. Although the relevant provisions in the
Disability Discrimination Act 1995 are not yet in force, the Committee could decide
that it wished to improve access to transport for the disabled and refuse to grant
licences for saloon taxis “for other good reasons” contained in Paragraph 5(d) of
Schedule 1.
(B) ABILITY OF THE SCOTTISH EXECUTIVE TO MAKE REGULATIONS AS TO TYPE,
SIZE AND DESIGN OF CARS
The Scottish Executive has always had powers to make Regulations in terms of
Section 20(2) of the 1982 Act to specify types, size or designs of vehicles which are
acceptable as taxis or private hire cars. They can specify different types, sizes or
designs of vehicles for different areas of Scotland. They have never done so.
In Circulars (6/1983 &25/1986)(which are not legally binding but indicate their thoughts
on various topics) in 1983 and 1986 the Scottish Development Department stated 2.21….”This power to prescribe types etc of vehicles is intended primarily as a reserve
power to be used if there is evidence of authorities imposing too specific or expensive
types on the local trade, with consequent increased costs for the public. It would not
prevent a local authority from refusing a licence if the vehicle was unsafe (10(2)) or
because unsuitable (providing that those alleged defects were not an inseparable part
of the type, size or design).”
2.47…”This regulatory power therefore enables the Secretary of State to specify
different types etc for vehicles in different areas as there may well be differing
requirements for types etc in, say, major city centres from the rest of Scotland. Subject
to further comments from local authority and trade interests, this power is, however,
intended primarily as a reserve power, only to be used if there was evidence of local
authorities imposing unnecessarily expensive vehicle types on the trade in their area
with subsequent unnecessarily high costs, both for the trade and their customers; an
example of this would be if there was evidence of local authorities requiring the, say,
so-called Metropolitan type of cab only, in areas outside major city centres in
circumstances where it could be shown that a single type of vehicle was not justified.
In the Secretary of State’s view there is little merit in imposing a single vehicle type or
model on the taxi or hire car trades. The public and the operators should be given a
choice which reflects as least in part the wide choice of general purpose vehicles
available to the private motorist which have 4 doors, seats for 4 to 6 people including
the driver, and have an engine in the range of 1300 to 2500 cc s.”
As there are no Regulations in place as regards type, size and design, each local
authority must form its own view as to a particular vehicle’s suitability based on its
type, size and design. If Aberdeen City Council required a particular type, size or
design of vehicle which the Scottish Executive regarded as “unnecessarily expensive “
and would result in “unnecessarily high costs for both the trade and their customers”,
they could introduce Regulations for Aberdeen to curtail these excessive requirements
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As will be explained, the Scottish Executive have indicated that they would find it
difficult to support a request from the trade in Aberdeen to make Regulations to
prevent the Council requiring taxis in the city to be wheelchair accessibe.
(C ) ENGLISH COURT CASES SUPPORTING COUNCILS REQUIRING 100%
WHEELCHAIR ACCESSIBLE HACKNEY FLEETS.
Section 47 (2) Local Government (Miscellaneous Provisions) Act 1976 allows
English/Welsh local authorities to require hackney carriages in their area to be of a
particular design or appearance. The section is of interest as it refers to “design” which is
also used in Section 10(2) of the Civic Government (Scotland) Act 1982.
The provision resulted in some English councils requiring all taxis in their area to be of a
“black cab” type. Some councils have gone further, and have required not only an allLondon-style cab fleet, but that the fleet itself should be comprised of all wheelchairaccessible vehicles. This was pioneered in the late 1980s by Manchester City Council and
was challenged in the case of R v Manchester City Council, ex p Reid and McHugh
(1989) 88 LGR 180.
In the mid-1980s, Manchester City Council was concerned about the provision of transport
services for disabled people who used wheelchairs and, when they decided to increase
the size of the hackney carriage fleet in Manchester by 100 vehicles, they imposed a
condition upon those licences requiring the successful applicants to provide vehicles which
were not only based on a London-style cab, but also either already converted for
wheelchair access or to be converted within a specified period of time at their own
expense. This condition was challenged as being unreasonable. Simon Brown J heard
the application for judicial review. He considered an earlier judgement in R v Wirral
Metropolitan Borough Council 2 [1983] CMLR 150 and stated (at page 185):
‘The decision [in the Wirral case] is, of course, authority for saying that a council is
obliged to have regard to safety and convenience, but not for the converse
proposition that the safety, convenience and comfort of passengers are the only
considerations (apart from section 47(2) of the Act of 1976 question of
identification) open to an authority determining what conditions to impose.
As it seems to me conditions imposed for the other considerations could well be
legitimate, for instance those controlling the display of advertisements such, indeed,
as formed part of the city council’s own standard conditions. Even, however, were
this not so, I have no difficulty whatever in regarding a facility for transporting
the wheelchair-bound disabled as directly relating to the “safe, comfortable
and convenient functioning of the taxi” and thus squarely within Mr Frizgerald’s
[who appeared for the applicants] own formulation.
Nor am I in the least attracted to the submission that the wheelchair-bound
disabled (or rather that proportion of them who are particularly advantaged by
being enabled to remain in their chairs) are too small a minority of the
population to be properly regarded as an integral part of the general public.
On the contrary, I prefer Mr Hugill's approach that the general public must be taken
74
to comprise many physical minority groups, including for instance the obese, the
unusually tall, young children and the disabled.
Ultimately, it must always be a question of fact and degree whether the minority is
so small or the advantage to them is so slight or the cost of complying with the
provision is so great that the imposition of such a condition cannot be justified.
Mr Fitzgerald further stresses the phrase “reasonably necessary” within the
condition-making power. He contends that even putting the city council’s case at its
highest it was their conclusion only that the proposed facility was an ideal rather
than a necessity, their evidence being couched in the explicit language of
desirability, not need. This submission also I reject. It seems to me that desirability
shades into necessity: what is clearly desirable in the interests of the safety and
comfort can by the same token properly be regarded as reasonably necessary.
Nor do I accept Mr Fitzgerald’s argument that the conversion condition can be
impugned as not reasonably relating to the purpose of the condition-making power,
but imposed rather for an ulterior object, that of solving the wider and more general
problem of the disabled within Manchester’s public transportation system. The
contention here is that the council were exercising the power of compulsion over
new taxi drivers to make good deficiencies elsewhere in the transport system. But I
can see no objection to the council having regard to the existence or lack of
alternative facilities for the disabled when deciding how to exercise this conditionmaking power”.
In fact subsequent development prior to this hearing took the policy of Manchester City
Council even further. They had by then imposed a condition requiring all existing
licensed hackney carriages within the City to be converted to carry wheelchairs, or
failing that, the replacement of the vehicles with purpose-built, wheelchairaccessible vehicles. The cost for this was to be recovered through an increase in fares
and, as a consequence, by the beginning of 1992 Manchester had the first English fleet of
hackney carriages which were all accessible for wheelchair-using travellers.
Similar policies have now been adopted by a number of local authorities throughout
England and Wales. In the joined cases of R v Lincoln City Council, ex p King and
Cook and R v Luton Borough Council, ex p Mirza 1 (2 February 1995, unreported), CA,
similar polices adopted by both Lincoln City Council and Luton Borough Council were
considered by the Court of Appeal. These councils had refused renewal applications from
existing hackney carriage licence holders as they refused to change over to wheelchair
accessible vehicles. The licence holders argued that such policies were unreasonable.
This argument was dismissed by Swinton Thomas LJ in this way (at 11D):
“Mr Langstaff [for the Appellants, Cook, King and Mirza] submits that the refusal of
the Lincoln City Council to grant licences to Mr Cook and Mr King was …
unreasonable. It is said that it was perverse of the Council to adopt a policy that all
taxis should have wheelchair access. It is stressed that these applications were
applications for renewal as opposed to new applications. It is said in particular that
there was no evidence to support a need for this condition to be included in the
licences and indeed, by reference to the bundle, that there was evidence to the
contrary effect.
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This policy is one which has been adopted – and this is common ground – by a
number of Councils, and has been considered previously by the Courts. In these
cases there are certainly matters on the facts and on the merits of the applications
which might be considered by Magistrates, or by the Crown Court if the appeal is
pursued. However, in my judgement it is quite possible to argue that no local
Council, applying its mind properly to the problem, could have reached the decision
reached by the Lincoln City Council, either in adopting the policy or in refusing the
applications made by Mr King and Mr Cook. Insofar as the reasons for the
decisions are concerned, the reasons given were plain and clear, namely that the
vehicles failed to comply with condition (3)”.
These cases would indicate that the courts in England have accepted that English councils
can require the whole of their hackney fleet to be wheelchair accessible. These decisions
are not binding on Scottish courts, but it is the Corporate Director’s view that Scottish
Courts would note these English cases.
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SECTION 8
THE PASSING OF THE DISABILITY DISCRIMINATION ACT IN 1995 AND THE EARLY
INDICATIONS THAT ALL TAXIS WOULD REQUIRE TO BE WHEELCHAIR
ACCESSIBLE BETWEEN 2002 AND 2012
In the early 1990’s there was pressure by disability rights campaigners for legislation to
prevent discrimination against disabled persons. In July 1994, the UK government
issued a Consultation Document “Government Measures to Tackle Discrimination
Against Disabled People”. This outlined a programme of statutory reform to eliminate
discrimination against all disabled persons in employment, access to services, buildings
and transport. This process is ongoing.
The Disability Discrimination Act 1995 introduced a range of measures, including
improving access for disabled persons to transport. The focus by the government to
date has been to improve access to trains, buses and aeroplanes. Much work has been
done in attempting to improve the design of the said means of transport.
As regards taxis, the government stated during the debate on the proposed Act – “ We
have no intention of introducing the requirements over such a period as would
undermine the viability of the taxi trade”. The Act empowered the Secretary of State for
Transport to gradually introduce a requirement whereby all taxis in England and Wales
would be wheelchair accessible. These provisions do not extend to Scotland. The
Scottish Executive has power to decide to introduce, or not, similar provisions in
Scotland.
The various sections are as set out below –
Section 32
The Secretary of State has power make Taxi Accessibility Regulations so that it is
possible —
(a) for disabled persons —
(i) to get into and out of taxis in safety;
(ii) to be carried in taxis in safety and in reasonable comfort; and
(b) for disabled persons in wheelchairs—
(i) to be conveyed in safety into and out of taxis while remaining in their wheelchairs;
and
(ii) to be carried in taxis in safety and in reasonable comfort while remaining in their
wheelchairs.
The Regulations would contain details as to the way taxis are built, specifying (i) the size of any door opening
(ii) the floor area of the passenger compartment;
(iii) the amount of headroom in the passenger compartment;
(iv) the fitting of restraining devices designed to ensure the stability of a wheelchair
while the taxi is moving;
(v) the types of ramps to be carried to assist loading of wheelchairs;
(vi) the way wheelchairs are to be carried in the taxi.
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Section 34
From a date to be specified by the Secretary of State, Councils would not be permitted
to grant a new taxi licence unless the taxi complied with the physical standards set
down in the Taxi Accessibility Regulations. There was, however, an exemption provided
where the application for grant was in respect of a taxi which was then operational in
the fleet. It was intended that this temporary exemption would extend for several years
to permit existing taxis, which would not comply with the new physical standards, to
remain in use for a reasonable period.
Section 35
This allowed Councils to apply to The Secretary of State for an Exemption Order,
exempting taxis in their area from having to comply with the requirements under the
Taxi Accessibility Regulations.
It was intended that Councils could only apply for an Exemption Order after they had
consulted widely and only if satisfied—
(a) that, having regard to the circumstances prevailing in its area, it would be
inappropriate for the taxi accessibility requirements to apply; and
(b) that the application of the requirements would result in an unacceptable reduction in
the number of taxis in its area.
The Secretary of State would have powers to make or refuse a request for an
Exemption Order. He would have powers to require any taxi in such exempt area to fit
approved swivel seats. (Swivel seats are replacement seats, usually fitted in the front
passenger seat, which swivel out to assist disabled passengers to get into and out of
the taxi).
Section 36
This section imposes express duties on taxi drivers in relation to disabled
passengers.
The duties are —
(a) to carry the passenger while he remains in his wheelchair;
(b) not to make any additional charge for doing so;
(c) if the passenger chooses to sit in a passenger seat, to carry the wheelchair;
(d) to take such steps as are necessary to ensure that the passenger is carried in safety
and in reasonable comfort;
(e) to give such assistance as may be reasonably required—
(i) to enable the passenger to get into or out of the taxi;
(ii) if the passenger wishes to remain in his wheelchair, to enable him to be
conveyed into and out of the taxi while in his wheelchair;
(iii) to load the passenger's luggage into or out of the taxi;
(iv) if the passenger does not wish to remain in his wheelchair, to load the
wheelchair into or out of the taxi.
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A driver would not be required to carry more than one wheelchair at a time or carry a
wheelchair larger than one allowed by the new technical regulations.
A taxi driver could apply to the Council for Medical Exemption in relation to these
duties on medical grounds. A Certificate of Exemption could run for any period and
would be displayed in the taxi.
Section 37
This section imposes duties on taxi drivers for the carriage of guide or hearing dogs
and provides for a similar medical exemption procedure if the drivers has
allergies/phobias.
Section 39
All the above provisions only apply in England and Wales. New sections were inserted
in the Civic Government (Scotland) Act 1982 leaving it up to the Scottish Executive to
introduce Regulations as they considered necessary or expedient in Scotland in relation
to the carrying in taxis of disabled persons and these Regulations can provide –
(a) requirements as to the carriage of wheelchairs, guide dogs, hearing dogs and other
categories of dog;
(b) a date from which any such provision is to apply and the extent to which it is to
apply; and
(c) the circumstances in which an exemption from such provision may be granted in
respect of any taxi or taxi driver,
Original Timetable that the Taxi Provisions of the 1995 DDA would be Introduced
between 2002 and 2012
The timetable initially indicated by the UK government was that the requirements would
first be introduced for new applicants for taxi licences in 2001. Thereafter, over a 10year period, when existing taxi operators replaced their saloon car taxis, they would be
required to purchase wheelchair accessible taxis. It was therefore envisaged that all
taxis in England and Wales would be wheelchair accessible by 2011.
The original approach adopted by the Scottish Executive was to await developments in
the rest of the country, but it indicated that it would try, as far as possible, to mirror the
timetable set down originally for England and Wales.
This timetable has not been adhered to. The Department of Transport had hoped to
reach agreement with the manufacturers of vehicles and Taxi Trade Representatives on
the technical requirements for wheelchair accessible taxis. No such agreement has
been reached to date.
Regulations have, however, been brought into effect in England, Wales and Scotland as
to the carriage of guide and hearing dogs in 2003.
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SECTION 9
ABERDEEN CITY LICENSING
ACCESSIBLE TAXIS SINCE 1994
COMMITTEE’S
POLICY
ON
WHEELCHAIR
In the early 1990’s, in light of the national debate then ongoing on disability
discrimination issues, Aberdeen City Licensing Committee wished to increase the
number of taxis which were accessible to persons in wheelchairs. Unlike Edinburgh
and Glasgow, which have always required “London style” black cabs, which are
wheelchair accessible, Aberdeen did not require such vehicles. Apart from several
black hackney cabs, the majority of taxis in Aberdeen before 1994 were saloon cars.
At its meeting on 19th August 1994, the Committee placed a limit of 850 on the number
of taxi licences that would be granted. This limit could be exceeded if the vehicle to be
provided was wheelchair accessible. Existing licence holders were permitted to
continue operating saloon cars.
In forming this policy, the Committee were aware of the provisions to be contained
within the Disability Discrimination Act 1995, regarding wheelchair accessiblity. The
timetable initially indicated by the UK government was that this requirement would be
introduced for new applicants for taxi licences in 2002 and it was thought that equivalent
provisions would come into effect in Scotland at that time.
Given the delay in the introduction of the provisions, the Committee reviewed its policy
on wheelchair accessible taxis in 1999. The Committee has, since then, required all
applicants for new taxi licences (regardless of the number of plates in use) to provide
wheelchair accessible taxis. Existing saloon car taxi operators have been permitted to
continue using saloon taxis. The Committee indicated that it would review its policy
once the detailed terms of the Taxi Accessibility Regulations became known.
The policy has resulted in there being 267 wheelchair accessible taxis in the city by
October 2004, representing 29% of the fleet.
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SECTION 10
VEHICLE TYPES ACCEPTED AS WHEELCHAIR ACCESSIBLE TAXIS IN ABERDEEN
The Committee has approved several types of vehicles as being suitable “wheelchair
accessible taxis”. As there is no statutory specification, the Taxi Inspector has inspected
and recommended different types of vehicles as being suitable.
The Committee originally permitted vehicles described as N1 Type Approved. These
were basically commercial vans, converted to carry passengers and having suitable
steps and ramps fitted. Concerns were then expressed by the police as to the
desirability of approving vehicles which had not been originally designed to carry
passengers and the resultant conversions which had not undergone appropriate crash
testing. It was decided in 1999 that these vehicles should be phased out from the fleet.
The Committee then decided that, in order to be approved as a wheelchair accessible
taxi in Aberdeen, a vehicle had to be of M1 test standard.
Vehicles which were designed from the outset as taxis, such as TX 2’s, and constructed
in large volumes have undergone full crash testing by the authorities. These vehicles
are defined as “Whole Vehicle Type M1 Approved.”
People carrier type vehicles can be modified by small firms of vehicle modifiers. These
modifications cover the fitting of steps, ramps and other alterations to render the vehicle
suitable carry wheelchairs. The modifying company submits one of its vehicles for
checks to the appropriate inspection authority. If the vehicle passes the tests, that
modification is classed as “Low Volume Type M1 Approved”. These vehicles are
acceptable as wheelchair accessible vehicles in Aberdeen. These vehicles can only be
produced in low volumes, but they form the majority of wheelchair accessible vehicles in
Aberdeen. Examples of this type of vehicle are the Fiat Doblo Freedom , Peugeot Euro
7 and Volkswagen Sharan.
It is a requirement in Aberdeen that vehicles presented for licensing as taxis have to be
less than five years old. To encourage the uptake of wheelchair accessible vehicles, the
Committee has allowed M1 approved vehicles to be up to 10 years old (subject to their
physical condition being acceptable).
In addition, since 2004, the operators of larger taxis can charge 50p as an extra for
each passenger carried over 4. As wheelchair accessible taxis tend to be physically
able to carry more passengers than saloon cars, it is hoped this would encourage the
adoption of these vehicles.
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SECTION 11
POLICIES IN OTHER SCOTTISH COUNCILS AS TO WHEELCHAIR ACCESSIBLE
TAXIS.
A copy of the policies adopted by other Scottish Councils is attached in Appendix 8.
The summary was contained in a report to the Local Government and Transport
Committee at the Scottish Parliament on 29th June 2004.
Five Councils have 100% wheelchair accessible taxi fleets. Of the remaining Councils,
Aberdeen has the greatest number of wheelchair accessible taxis.
Members are also referred to the Report to Dundee City Licensing Committee
previously referred to relating to the policy on the introduction of wheelchair accessible
taxis. Members attention is drawn to Paragraph 5.6 of the report which refers to
Aberdeen’s policy on wheelchair accessible taxis. It is stated that Aberdeen’s policy is
to maintain a limit on the number of taxi licences issued, but to grant taxi licences over
that limit if the taxi is wheelchair accessible. This was the policy in Aberdeen up to
1999, but was changed then to the present policy. Dundee seems to have been
unaware of this change of policy in Aberdeen when adopting their own policy.
Members will also note in the summary that East Ayrshire and Edinburgh City Councils
require new taxi drivers to receive disability awareness training before their taxi driver
licence applications are granted.
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SECTION 12
DUTIES OF TAXI DRIVERS TO GIVE ASSISTANCE TO PASSENGERS IN
WHEELCHAIRS AND MEDICAL EXEMPTIONS.
1. The main focus in the Civic Government (Scotland) Act 1982 is to ensure that the
driver is fit to drive. The Act allows the Committee to attach reasonable conditions to
taxi and private hire car licences. Condition 19 for Taxi Drivers and Condition 17 for
Private Hire Car Drivers state that
“The driver…shall give such assistance as he is able to give with loading and
unloading passengers and luggage when required to do so, but shall not be required
to leave the immediate proximity of the (vehicle) in doing so”.
The 1982 Act was prepared at a time when little thought was given to requiring
taxi/PHC drivers to anything beyond driving the vehicle and assisting the passenger
with luggage. It was not intended that drivers would be required to push wheelchairs
into and out of vehicles. There could be question as to whether making this a
condition was reasonable. There appears to be no case law on this point.
It is of interest to note, however, that Parliament, when passing the Disability
Discrimination Act 1995, thought it necessary to insert a specific duty in Section 36
for a taxi driver to give assistance to passengers in wheelchairs. Did Parliament
consider that Councils did not have the power to make conditions requiring a driver
to push wheelchairs?
It is certainly preferable for the duties of the driver to be set down in Statute.
Unfortunately, Sections 32 to 38 of the Disability Discrimination Act 1995 do not
apply in Scotland. The Scottish Executive has power to amend the 1982 Act to make
such requirements for Scotland. No regulations have been made.
The Corporate Director is of the view that it would be preferable for the Scottish
Executive to set out those duties they are required to undertake over and above
driving. In the absence of such clear directions the Corporate Director would have
some concerns as to the Committee raising the requirements in the area.
It is the Corporate Director’s opinion that it would be unreasonable to refuse to grant
or renew a taxi driver’s licence merely on the basis that the driver was physically
unable to push a wheelchair. It would not be a reasonable requirement for all taxi
drivers say to be as fit as, say, a fireman. The Disability Discrimination Act shows
that Parliament expressly provided for drivers to be able to seek exemption on
medical grounds.
2. A procedure has existed for many years in Aberdeen for the granting taxi drivers
exemption on medical grounds from the duty to assist wheelchair bound passengers
in to and out of their taxis. Due to Condition 19 only requiring taxi drivers to give such
assistance as they were able to give, drivers were entitled to refuse to give
assistance, if they suffered from a medical or other physical problem, which made it
difficult or impossible from them to give assistance. To avoid disputes with
passengers and to monitor these matters, a practice has developed whereby drivers
83
can apply to the Taxi Inspector for exemption. Such requests had to be accompanied
with a letter from the applicant’s doctor confirming the driver’s medical condition. In
such cases the driver is still required to carry the wheelchair bound passenger, but
the passenger must get assistance from a third party to board or leave the taxi.
3. The Corporate Director advised the Committee on 27th October 2003 that
approximately 10% of the wheelchair accessible taxis in the city were driven by
drivers claiming exemption on medical grounds. Members expressed concern at the
number of drivers covered by the exemption but accepted that the exemption took
account of the Act and mirrored recent exemption procedures introduce to cover
drivers seeking exemption from carrying guide dogs. Nevertheless a review was
ordered. Since that time requests for exemption have been received from new drivers
and, as instructed, these have not been granted, pending the completion of the
review.
4. The existing procedures largely rely on the driver acting in good faith. Doctors’ letters
are obtained in all cases at the outset. Some doctors make a small charge for these
letters. There is no procedure at present, for cases to be reassessed. Very few
complaints have been received about drivers abusing the procedure. Whilst the
present system appears to be operating relatively well, concerns have been
expressed that if the number of wheelchair accessible taxis were to increase, there
may be an increased number of drivers who would seek to claim exemption.
Many drivers claiming exemption at present are able to provide clear evidence my
way of doctor’s certificates. The majority of medical conditions would refer to
heart/respiratory conditions, problems with limbs/joints/back, which will have required
operations and or treatment. These conditions are, of course, not so severe as to
prevent them being able to drive safely.
The difficulty in this area is, however, the “bad back”, which a driver may claim to
have, which is difficult to prove or disprove by a doctor. The example is often quoted
of the taxi driver who cannot push wheelchairs, but can still manage two rounds of
golf on a Saturday. The Taxi Inspector has advised that there are a few drivers
claiming exemption under the present system, but this is not a serious issue at
present.
5. If members wished to amend the exemption procedures, the procedures set down in
the Disability Discrimination Act could be used as a starting point, so that It would be a requirement, from a date to be decided, that (a) all taxi drivers seeking exemption on medical grounds from the requirement to
push wheelchairs will be examined by the Council’s Occupational Health Service,
and not the driver’s own doctor.
(b) all taxi drivers presently holding the medical exemption will require to be
examined by the Council’s Occupational Health Service and their request for
exemption will be brought before the Committee for reconsideration.
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(c) medical exemptions will be granted for a specific period, dependent on the nature
of the injury/disability and drivers will be re-examined by the Council’s Occupational
Health Service once the said period has expired.
(d) the costs of such medical examinations will be borne by the Council in the first
instance, but will be recovered from application fees.
(e) an appropriate notice will be displayed in the taxi being driven by an exempt
driver.
6. The Corporate Director would not, at this time recommend a change in procedures.
He considers that members were probably surprised at the number of wheelchair
accessible taxis being driven by drivers with exemption from pushing wheelchairs.
This, in a sense, defeats the point of having the taxi wheelchair accessible.
Passengers in wheelchairs will often not be accompanied by a companion who can
push the wheelchair into and out of the taxi. By allowing medical exemptions in the
Disability Discrimination Act, Parliament appears to have accepted that drivers will
be able to claim exemption and the Committee would have to accept that a possibly
significant number of wheelchair accessible taxis could be driven by exempt drivers.
The Corporate Director has concerns as to the staff time that would be expended in
the above amended procedures, particularly given that some claimants would require
to be re-assessed.
An alternative approach would be for the Scottish Executive to require all taxi drivers
to be fit enough to push wheelchairs. The difficulty with this is that taxi drivers who
are claiming exemption would probably be classed as being “disabled” under
Disability Discrimination legislation and could possibly claim that they were being
discriminated against if their licences were removed.
Another alternative would be the design of all wheelchair accessible taxis to be such
that the driver was not required to provide direct physical assistance to load or
unload a passenger in a wheelchair. The vehicle’s suspension could lower and or a
lift could be provided. Such requirements would have to be introduced nationally and
might be too expensive.
7. The Trade members on the Review Group have no objection to procedures for
exemption being change on the above basis, but they consider that the driver
seeking exemption should have to pay the cost of the examination, rather than it
being free and the costs of these being added to all taxi application fees. The
Corporate Director would point out that drivers who require to be subject to a medical
examination, to see if they are fir to drive a taxi, have their medical examinations
carried out by the Council’s medical providers at the Council’s expense. These costs
are then recovered through al taxi application fees. This follows the express
requirements set out in Section 13(4) of the 1982 Act and the Corporate Director
considers that the exemption for pushing wheelchairs should be treated the same
way. There are no provisions in Section 36 of the Disability Discrimination Act as to
who should pay for a medical exemption.
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SECTION 13
TAXI DRIVER TRAINING COURSES
It was suggested in 2002 that, in an effort to raise standards, the Committee made it a
mandatory requirement for all persons applying for the grant of a Taxi or Private Hire
Car Driver Licence to obtain the “Top Taxi “ or similar qualification. The Committee
referred this matter to the Taxi/Private Hire Car Review Group for consideration.
There is general support for the scheme by Councillors and trade members of the
Review Group. They have recommended that the Committee made it a mandatory
requirement that all applicants for the grant of taxi and private hire car driver licences
had to pass the “Top Taxi” course.
It is not proposed that existing taxi or private hire car drivers be required to pass the
Top Taxi Course.
The Corporate Director is of the opinion, however, that it would be inappropriate, given
terms of the Civic Government (Scotland) 1982, for the Committee to introduce such a
requirement.
1. Details of the Scheme: The Top Taxi Training Scheme involves a series of modules
for taxi drivers in such issues as disability awareness, hospitality, driver welfare,
tourism, first aid and customer care. This was originally developed by Aberdeen
College with the assistance of Grampian Enterprise.
In 2004, the Council received funding from the EEC to enable up to 100 drivers to
be placed on the course free of charge. The course has been slightly amended and
will be organised through the Council’s Economic Development Service and
Hospitality Training. If the free places are taken up, it is hoped that further courses
would be run but that a charge would be introduced which would be slightly higher
than the original cost of £65. Notwithstanding the availability of these free places,
the uptake has been disappointingly low.
2. A pilot of the previous scheme for a small number of drivers took place on a
voluntary basis several years ago and was generally regarded as a success. The
participating drivers found it to be beneficial and of great interest.
3. The course developers hope that a large number of drivers will undertake the
training voluntarily. They would prefer, however, for the Licensing Committee to
introduce a requirement that, all new taxi drivers are required to obtain the
qualification before they are granted a taxi driver’s licence. The eventual aim, over
several years, is for all taxi drivers to obtain the qualification when applying for
renewal. The developers considered that both drivers and the public would benefit
from the introduction of a mandatory training requirement.
4. At the official launch of the scheme, on 6th May 2003, there was general support for
it from the trade members present and representatives of the tourist/hotel trade.
Some members of the trade expressed doubts, however, as to whether drivers
86
would voluntarily undertake the course. They were of the view that the course would
only succeed in raising standards if it were mandatory. It was suggested that the
cost of the course be included in the licence application fee.
5. The Corporate Director, whilst encouraging taxi drivers to undertake the training
scheme voluntarily, recommends that the Committee does not make the course
mandatory on the following grounds –
General Principles
(a) The general principle of the Civic Government (Scotland) Act 1982 is that every
applicant is entitled to have a licence granted or renewed, unless specific grounds
of refusal are established. It is not up to the applicant to establish that he is a fit and
proper person, but for the Committee to establish that he is not a fit and proper
person.
(b) The introduction of a mandatory qualification for taxi drivers would in effect amount
to the Committee requiring an applicant to prove that he has undertaken a course
and that he was a fit and proper person. This is not in accordance with the general
terms of the Act.
(c) If a mandatory training requirement were to be introduced nonetheless, the
Committee would no doubt soon be presented with a situation where a person
applying for the grant of a taxi driver’s licence did not hold the qualification. This
may be because driver refused to undergo the training, but it must also be borne in
mind that the course is relatively demanding and there is a possibility that drivers
may fail. The Committee would, of course, consider each application on its merits,
but for the policy to be effective the Committee would almost inevitably have to
refuse a taxi driver's licence. The mandatory nature of the training would be
undermined if there were too many “special cases”.
(d) The refusal of the licence merely on the grounds that the applicant did not hold a
particular qualification would be likely to be overturned on appeal. The legislation
allows a refusal of a licence only where there is a serious problem as regards the
applicant’s fitness. Licences should not be refused on the grounds of the driver
having to pass a much higher standard than the minimum. The fitness test is
designed to sift out applicants who are of bad “character”, rather than those that are
merely of a lower “competence” than the Committee or other members of the trade
or tourism bodies would prefer.
Qualification as part of the “Knowledge test” for Taxi Drivers
(a) Notwithstanding the above general points, Section 13(5) of the Act does permit the
Committee to require a new taxi driver to pass certain tests before he obtains his
licence.
“ A licensing authority may require an applicant for a taxi driver’s licence to take a
test of his knowledge of the area to which the licence is to relate, of the layout of
roads in that area and such other matters relating to the operation of a taxi as the
Committee consider desirable, and the authority may refuse to grant a licence to a
87
person who does not satisfy them that he has adequate knowledge of these
matters.”
(b) This mainly relates to the “street knowledge” test which taxi drivers must pass
before they obtain their licence. Drivers are also accompanied by the Taxi Inspector
for a short driving test. S13(5) does allow Committee to require a driver take a test
on “such other matters relating to the operation of a taxi as the authority considers
desirable”. There is no guidance available as to what these other matters could or
should be.
(c) There could be an argument that a test on “other matters” could include the
requirement that the taxi driver obtain the Top Taxi qualification. The various
matters to be covered by the course would, however, need to examined carefully to
see whether they could be reasonably be regarded as desirable matters to enable
the applicant to drive a taxi. The use of the word “desirable” is of interest, but
caution should be exercised so that the matters covered by the course are not too
wide and the standards required are not too high. Can knowledge on matters such
as tourism, first aid or anger management be matters which it could be said to be
matters which it can reasonable required by the Committee?
(d) It is important to try to interpret what Parliament had in mind in 1982 when the Act
was passed. It was clearly intended that a street knowledge test was permissable
but how extensive did Parliament intend these tests to be? Councils have discretion
on certain matters, but care has to be taken if they are not to stray too far from the
underlying purposes of the Act. The introduction of a requirement whereby drivers
had to obtain the Top Taxi qualification, as presently established, would possibly
take the Committee into an area which Parliament did not intend when the
legislation was drafted and bring the Committee within the realms of Stewart –vPerth and Kinross.
(e) Guidance issued by the Secretary of State for Scotland in November 1982 on the
1982 Act stated - “ In order to properly provide a service to passengers when he
picks up without prior arrangement and the opportunity to plan a route beforehand,
a taxi driver must have a good knowledge of the area within which he is licensed to
carry passengers and other matters relevant to the operation of a taxi as, for
example, the conditions attached to an operator’s licence. Subsection 5 provides
therefore that the licensing authority may require the applicant for a taxi driver
licence (but not a private hire car licence) to undergo a test of his knowledge of the
area, the layout of its roads, and such other matters relating to the operation of a
taxi as the authority consider reasonable. (The restriction to questions relating to the
operation of a taxi is to avoid suggestion that the tests could be used to unfairly
discriminate between applicants by testing them on issues not relevant to taxis).”
(e) It is also important to note that the requirement for the Top Taxi qualification under
S 13(5) could only be imposed on persons applying for grant of a taxi driver’s
licence and could not be imposed on existing drivers when they renewed their
licence. There are, on average, 6 new taxi drivers every month. As at November
2002, there were 1,175 taxi drivers in Aberdeen. If the Top Taxi Training course
were only to be mandatory for new drivers, there would be approximately 72 drivers
sitting the course every year. It is not known if this would make the course viable.
88
The vast majority of existing drivers would not be affected and it would take possibly
20 years before all drivers were qualified, due to the rotation of drivers into and out
of the trade.
It is recognised that certain other local authorities are introducing similar
requirements. Edinburgh requires all new taxi drivers, in addition to passing a
street knowledge test, to pass the Taxi Driver Skills Development Programme
organised through Telford College, otherwise their applications will be refused. The
course costs £264. It is the Corporate Director’s opinion, that the adoption of such
policies elsewhere only means that they have not been challenged in that locality,
not that they cannot be legally challenged.
In addition, if such a scheme were to be introduced, and training provided by a third
party, it would still involve additional staff time approving and monitoring the course.
Experience with the Door Steward Registration Scheme for the Licensing Board has
proved that workload is increased.
Conclusions.
The Corporate Director does not support the recommendation from the Review Group. He
considers that the emphasis of the Top Taxi Course is on customer care and on raising
standards. This, in his opinion, takes the course outwith the terms of the Act.
The Director recommends that the Scottish Executive consider amending the 1982 to
specifically permit Councils to make the obtaining of nationally recognised qualifications
mandatory for all taxi and private hire car drivers, whether new drivers or existing, and to
permit applications for grant or renewal of to be refused if these qualifications are not
obtained. There should also be provision for refresher updating courses.
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SECTION 14
THE FORMATION OF THE WHEELCHAIR TAXI USERS GROUP IN 2003 AND THE
CHALLENGE TO THE “TWO TIER” TAXI FLEET
As explained in section 4 in this paper, the Wheelchair Taxi Users Group was formed in
2004, and Counsel's opinion was obtained as to the underlying legal basis of the
Committee’s policy on wheel chair accessible taxis.
Counsel’s opinion was as follows –
1. The Committee would appear to have been acting within the powers already available
to it under the Civic Government (Scotland) Act 1982 in requiring taxis to be wheelchair
accessible, in advance of the introduction of mandatory provisions under the Disability
Discrimination Act. The Committee can therefore decide that a vehicle will only be
suitable in type and design if it is wheelchair accessible.
2. By continuing to allow persons, who held taxi licences before the introduction of the
wheelchair accessible requirement, to use saloon car taxis for an indefinite period, there
would appear to be an argument that the Committee’s policy was unlawful. It would
appear to be unreasonable that only new applicants for taxi licences had to provide
wheelchair accessible taxis. There is no provision in the 1982 Act to allow the creation
of a two tier taxi fleet based with the suitability or otherwise of a taxi being determined
by the date the licence older acquired his licence.
3. It might not be reasonable for the Committee to require that all taxis had to be
wheelchair accessible in a very short time period, say 6 months. The courts may look to
the Committee introducing such requirements over a period to ease the potential costs
to the trade. However, a policy to allow two categories of vehicle over a long and
indefinite period would also not be acceptable to the Courts, as the operators of
wheelchair accessible taxis would be treated less favourably than saloon taxi operators.
4. In light of the above, if the Committee wished to have all taxis wheelchair accessible,
Counsel supported a policy change to require all taxis to be of this category over a
phasing in period. In arriving at the time period for phasing in such a requirement,
Counsel suggested that the Committee may wish to give some thought to the average
usable life span of a saloon taxi, the age of existing vehicles and the nature of the local
trade, including its financial viability. He was of the view that, provided a the foregoing
factors were taken into account and a pragmatic and even handed approach was
adopted, the Courts may support a phased in approach and the policy might be
regarded as reasonable.
5. Counsel was asked to comment as to whether the Committee could require private hire
cars to be wheelchair accessible under the 1982 Act, notwithstanding that the Disability
Discrimination Act refers only to taxis (although similar requirements have been
introduced as to the carriage of guide dogs in private hire cars). Counsel confirmed that,
in theory, there would be nothing to prevent the Committee introducing such a
requirement. Such a policy might be more unpopular with the trade and the nature of
90
the taxi and private hire car business may be sufficiently different so that such a
requirement might be deemed to be unreasonable by the Courts.
Counsel’s opinion therefore appears to support the view that the Committee’s policy
must be changed so that the two tier taxi fleet is eliminated. The Committee would
accordingly have to decide whether it wished the taxi fleet in Aberdeen to be 100%
saloon car or 100% wheelchair accessible.
The Wheelchair Accessible Taxi Users Group have indicated that, if the Committee
were to wish to have a 100% wheelchair accessible fleet, they would be willing to allow
a reasonable period for existing saloon car taxi operators to change to wheelchair
accessible taxis. Their members have indicated that they would wish to avoid having to
take their case to court and, this could be avoided if the Committee made a decision to
require that all taxis had to be wheelchair accessible by a certain date.
The Wheelchair Accessible Taxi Users Group have made suggestions that, rather than
introduce a 100% requirement for wheelchair accessible taxis, the Committee might
consider a procedure where a target percentage figure be set and a “revolving door”
policy be adopted. This would involve new taxi licence holders having to provide a
wheelchair accessible taxi, and an existing wheelchair accessible operator being
permitted to operate a saloon car taxi. New taxi operators would then have several
years of operating a wheelchair accessible taxi.
The Corporate Director is of the view that this policy would not be legally acceptable as
the two tier fleet would continue to exist and the suitability of a vehicle would again rest
on the date on which the licence holder acquired his licence.
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SECTION 15
RECENT DEVELOPMENTS IN ENGLAND AND WALES
On 28th October 2003, the UK Government announced a timetable for the introduction
of the Disability Discrimination Act taxi provisions in England and Wales. A copy of the
proposals is attached in Appendix 9. It is intended to phase in the requirements over a
ten year period commencing in 2010 in larger urban areas.
The Department of Transport has said that the proposed time scale for introduction is
consistent with the approach for other forms of transport and is necessary to give the
trade sufficient time to adapt to the change. It will also enable second-hand accessible
taxis to cascade into regulated areas where high proportions of the trade are saloon
cars, thereby lowering costs and allowing the economic life of existing, unregulated
taxis, to be realised.
The Department has also stated that 2010 is proposed both to accommodate a full
public consultation process and to give sufficient time for vehicle manufacturers and
converters to produce new models that meet the regulations. The Government is
currently developing the technical specifications that all taxis in the relevant areas will
need to comply with. A research project looking at the ergonomics of taxi design to
meet the needs of the widest possible range of disabled people has recently been
produced
and
can
be
obtained
at
http://www.dft.gov.uk/stellent/groups/dft_mobility/documents/page/dft_mobility_031118.
pdf. The regulations will cover wheelchair accessibility, including the provision of
access/egress facilities such as ramps. They will also specify the size and location of
handrails, handholds and other devices as well as the provision of equipment such as
swivel seats to help the widest possible range of disabled people to use taxis.
The Department of Transport says that these proposals are intended to meet the
economic concerns of manufacturers and the trade, as well as the aspirations of
disabled people. Both the policy and the technical regulations will be the subject of full
public consultation in due course.
The Department states that until the Taxi Accessibility Regulations are introduced, it will
remain for individual licensing authorities in England and Wales to determine their
accessibility policies in consultation with the local trade and disabled people.
Whilst the announcement for England and Wales is welcomed, it is unfortunate that it
has taken eight years after the passing of the Act. It is also unfortunate that this period
has not been utilised to carry out research and consultation into the design of taxi
vehicles. The Corporate Director has some doubts whether it will be possible in practice
for all the necessary discussions and consultations to take place with vehicle
manufacturers, trade and disabled representatives, to enable a range of suitable
vehicles to be available for sale to the trade by 2010. It is likely that purpose built
vehicles may have to be constructed or existing models to be substantially modified to
meet these targets. As the cost of these vehicles will be a major issue for the trade,
discussions are likely to be heated. It can take some time for vehicles to be brought into
production once the standard is set. Consultations has not yet begun and there is an
92
increasing possibility that the formulation and introduction of these Regulations will be
delayed, so that the 2010 target will not be met.
93
SECTION 16
RECENT ANNOUNCEMENTS IN SCOTLAND
A copy of correspondence between the Corporate Director and the Scottish Executive
in August and September 2003 regarding the introduction of provisions in Scotland
under S 39 of the Disability Discrimination Act 1995 is attached at Appendices 10 and
11.
The letters set out the Executive’s likely response if the taxi trade asked for Regulations
to be introduced, under S 20(2) of the 1982 Act, to prevent the Council insisting on all
taxis being wheelchair accessible in advance of the mandatory provisions. It was
indicated that it would be difficult for the Executive to introduce such Regulations due
their policy of encouraging Councils to introduce such requirements in advance of the
1995 Act provisions.
A copy letter from the Scottish Executive dated 28th October 2003 is attached at
Appendix 12. This refers to the announcement in England and Wales of the
introduction of taxi provisions under the 1995 Act. The Executive indicated their
intention to adopt a different implementation plan for Scotland, so that it would be for
each Council to decide to what degree it wished to introduce mandatory requirements
for accessible taxis in their area. The Executive also indicated that Ministers wished to
ensure that a range of accessible vehicles are available in all local authority areas in
Scotland. It was indicated that they intended to consult widely on this proposed
approach as well as on the criteria and process for implementation.
There has been no further communication from the Scottish Executive on this matter
since October 2003.
The Scottish Executive stated that they plan to match the proposed timetable for
England. If the Scottish proposals simply matched the proposals for England and
Wales, there is a possibility that their introduction in Scotland would also be delayed
beyond 2010. However, as the whole matter of how, when and where mandatory
provisions are to be introduced in Scotland has also still to be discussed and decided in
Scotland, it is the Corporate Director’s opinion that matters are likely to be further
delayed in Scotland.
94
SECTION 17
THE PUBLICATION IN
DISCRIMINATION BILL
DECEMBER
2003
OF
THE
DRAFT
DISABILITY
This Bill contains proposals that (1) Councils, in carrying out their functions, would require to have due regard to the
need to eliminate disability discrimination which is unlawful.
(2) persons providing a transport services would no longer be exempt from the
requirement set down in S19 of the Disability Discrimination Act 1995 (ie it is
unlawful to discriminate against a disabled person).
(3) there may be consequences, at some unspecified time in the future, on taxi/private
hire car operators and radio control centres, regardless of the progress of the
specific taxi provisions under the Disability Discrimination Act 1995 to prevent
discrimination against disabled persons.
The impact of this proposed legislation on the taxi trade and the policies of the
Licensing Committee is uncertain at this time, but its publication does indicate the
government’s continuing desire that discrimination against disabled persons should be
reduced as far as possible.
95
SECTION 18
APPARENT INABILITY OF THE 1982 ACT TO SUPPORT SOME POLICIES RELATING
TO WHEELCHAIR ACCESSIBLE TAXIS
The correspondence from the Scottish Executive, to date, has encouraged Councils to
form their own policies on requiring wheelchair accessible taxis in advance of
introduction of the 1995 Act provisions. They advise that it is up to each Council to
obtain its own legal advice. Some Scottish Councils have followed their
recommendations and introduced a variety of policies in these areas. As these policies
have not faced legal challenge, to date, they have been copied by other authorities. The
cost, complexity and risk involved in challenge may be a factor.
It is the Corporate Director’s opinion that many of these policies do not withstand close
scrutiny. The 1982 Act was not designed with disability issues in mind. The Act does
appear to provide a basis for Councils dictating the type and design of vehicles suitable
for use as taxis. These requirements have to be operated in a fair way however. The
Act does have elements of flexibility built in, so that Councils can impose reasonable
conditions. However, many of the other practices adopted, in the corporate Director’s
opinion, seem to run contrary to the way the legislation was designed to operate and
run contrary to its terms.
In light of all of the foregoing, it is the Corporate Director’s opinion that the Civic
Government (Scotland) Act 1982 cannot, in its present form, support –
(a)
(b)
(c)
(d)
a mixed taxi fleet, and that the taxi fleet requires to be either 100%
accessible or not,
a requirement that only applicants for taxi licences must provide wheelchair
accessible taxis,
the retention of a numerical limit on the number of taxi licences that can be
granted, whilst granting taxi licences, over that limit to wheelchair accessible
taxis,
the requiring of existing taxi drivers to pass Disability Awareness tests in
order to retain their taxi driver’s licence.
The Scottish Executive could, of course, amend the Civic Government (Scotland) Act
1982, to introduce proposals to allow Councils to require a percentage of their taxi fleet
to be accessible and/or have a range of vehicles available. It is the Corporate Director’s
view, however, that it would be difficult, if not impossible, for the Scottish Executive to
design a fair system to determine which operators had to provide the wheelchair
accessible vehicles .
96
SECTION 19
DISABLED AND ELDERLY PASSENGER’S REQUIREMENTS
(a) National Research
A Research Study on “The Attitudes of Disabled People to Public Transport“ in England
and Wales carried out by the Disabled Persons Transport Advisory Committee in May
2004 stated that –
“Transport issues are important to disabled peoples lives - being the single most
prominent concern at the local level. Pavement and road maintenance generate the
most dissatisfaction, along with access for disabled people to transport vehicles and the
frequency of public transport.
Disabled people travel a third less often than the general public. Disabled people drive
cars a lot less and are less likely to have one in the household. Despite this, cars are
central to disabled people's mobility, with the most common mode of transport being a
car driven by someone else. Disabled people use buses, taxis and minicabs more often
than the general public.
Disabled people would particularly welcome their views being taken into account in the
implementation of transport services.
It is important to note that disabled people are not a homogenous group, nor are their
transport needs and priorities the same.
In many respects the transport priorities of disabled people differ very little from the
general population as a whole - frequent and reliable services. However, in addition to
more frequent services, more comfortable services and lower cost services, improving
access for disabled people is a key priority. Many priorities also relate to the 'softer'
aspects - the way in which services are delivered rather than the actual services
themselves. In particular, improving attitudes of transport staff is perceived as a key
issue.
In terms of convenience and ease of use, taxis and minicabs are rated the most highly.
63% of disabled people are satisfied with taxi/minicab services, rising to 80% among
users. This may be partly explained by the personal service some disabled people
receive from local taxi/minicab firms. When disabled people are asked to rate the
design of a number of transport services, reactions are largely negative. Black cabs
receive the best rating, with just under half of all disabled people (48%) believe they
have good design for disabled people (although 9% disagree).
Overall, 41% of disabled people experience difficulty with journeys. A quarter
experience difficulty with travelling to/from the doctor/hospital. Twenty-three per cent
say this about visiting friends/relatives, and 18% for visiting leisure/recreational
services. Twenty-three per cent of disabled workers say they find travelling to/from their
place of work difficult. Wheelchair users (64%) are significantly more likely to report
experience difficulty than the other groups.
97
61% of disabled people plan journeys in advance. Wheelchair users who are most likely
to plan journeys in advance - 79% do so.
Of those who plan journeys well in advance, the majority say they get frustrated that
they cannot go out at the spur of the moment. However, a significant proportion (40%)
accept it as part of being a disabled person. Wheelchair users and visually impaired
people are most likely to be frustrated that they cannot go out on the spur of moment
(82% and 63% respectively).
Taxis and minicabs are rated highly on personal security and the ease of making travel
arrangements. However, the cost of travel is seen as a downside for this form of
transport, as is the lack of new vehicles designed to meet the needs of wheelchair users
and people with an ambulant disability.
In the qualitative research, the key issue with taxis was cost. There was also a feeling
that conventional minicab services are not suitably adapted to the needs of wheelchair
users. Outside metropolitan centres, taxis tend to be un-adapted cars. For some
disabled people (such as wheelchair users who wish to remain seated in their chairs)
this causes severe difficulties getting in and out of the vehicle. The solution is to use
specially adapted taxi services, which are available in some areas, although these
services tend to be more expensive".
As to improvements to encourage greater taxi/minicab use, the report stated that - "It is
by no surprise that lower fares would encourage greater taxi/minicab use Apart from
cost, friendly/more helpful drivers, better seating and improved security/safety would
attract wheelchair users.
Above all, disabled people want planners, transport operators and decision-makers to
properly consider their needs when designing and operating services. Currently, 60% of
disabled people think that the people responsible for transport planning and
development pay 'too little' attention to providing facilities for disabled people in their
local area.”
(b) Aberdeen Mobility Impaired Survey 2004
In 2004 the Committee instructed TPI Ltd to carry out a survey into the demand for taxi
services in the city. This was primarily concerned with whether there was any evidence
to support a limit placed on the number of taxi licences the Committee can issue. The
survey involved extensive observations of waiting times at taxi ranks and street
interviews. The Committee also took up an option to have TPI Ltd carry out a Mobility
Impaired Survey. The results of these surveys were provided to the Committee on
10th January 2005 and the results and covering report by the Corporate Director can be
down loaded from - http://www.aberdeencity.gov.uk/licensing/news
As part of a street questionnaire of 1000 members of the public (of which only 5.9%
were over 65 years old), it is interesting to note that 13.7% stated that they had
experienced difficulty in entering or exiting any design of taxi, whilst 23.5% had
experienced difficulty with taxis with steps (such as London style taxis or people
carriers). This question had been expressly asked as the possible eventual introduction
of a 100% wheelchair accessible taxi fleet would more than likely require taxis with
steps. The responses to this question highlight the difficulties that around a quarter of all
98
passengers might face in entering or exiting vehicles with steps. This highlights the
importance of good design in the type of taxi vehicles to ensure that this group people
are not disadvantaged.
A summary of the responses provided in relation to the Mobility Impaired Survey
Questionnaire issued to local disabled residents is set out in paragraphs 25 to 32 of the
Executive Summary attached at Appendix 13. It is unfortunate that only a 6%
response rate was achieved. (60 responses).The survey indicated that disabled
persons were reasonably satisfied with taxi/private hire car offered. The Survey Report
commented that the level of dissatisfaction expressed was appreciably less than that in
other local authorities the company had surveyed.
The responses indicated that 100% of use of taxis or private hire cars by persons in
wheelchairs was pre-booked by telephone.
There was a difference of views between passengers in wheelchairs and those with
other disabilities as to the type of vehicle in which they preferred to travel. Of the former,
63.2% preferred wheelchair accessible taxis, 15.8% preferred saloon cars and 15.8%
had no preference. Of the latter group, 7.3% preferred wheelchair accessible vehicles,
48.8% preferred a saloon car and 31.7 had no preference.
36.7% of respondents in wheelchairs thought the availability of wheelchair accessible
vehicles was below average.
The overall picture presented by the response to the survey was that disabled persons'
demand for appropriate taxi/private hire car services were being, by and large, met at
present in Aberdeen. There is room for improvement, however, in availability of taxis for
telephone booking.
The survey also asked for comments from disabled representatives and community
organisations in the city and responses can be seen on pages 51 to 59 of the Survey
Report. Comments included reference to drivers attitudes and the desirability of training
for taxi drivers to raise standards. Of concern, however, was the opinion expressed by
the Disability Advisory Group, regarding disabled persons being reluctant to make
complaints, for fear of being “blackballed”.
The survey also recommended the introduction of Disability Awareness Training
Courses for drivers.
(c) Discussions with Local Disabled Groups and Individuals
Discussions have taken place with members of the Disability Advisory Group. Several
problems have been highlighted.
1. The increase in the total number of wheelchair accessible taxis was welcomed.
2. Most disabled persons pre-booked their taxi or private hire car by telephone.
3. The level of service provided by companies and individual taxi companies, when a
taxi was provided, was generally highly rated. Many had repeat bookings with
particular companies and drivers. Some companies and individual drivers had
99
4.
5.
6.
7.
8.
9.
developed a speciality in carrying passengers in wheelchairs and their services
were much in demand.
Despite the increase in the number of wheelchair accessible taxis, it was still
difficult to book one at particular times. This appeared to be a result of these
vehicles being used to meet the high peaks of demand at weekends. These
vehicles were not kept back as a reserve in case persons in wheelchairs required
them. In addition, as drivers were working long hours at weekends, they would take
time off at the quieter times. This meant radio control centres found it difficult to
meet disabled passenger’s requests for wheelchair accessible taxis at quiet times.
The Taxi Card Scheme operated by the Council in association with taxi companies
to provide financial assistance to elderly or disabled passengers was welcomed.
Not all taxi drivers had taken up the scheme and there was sometimes confusion as
to how it operated.
Much depended on the attitude and demeanour of the taxi driver. Some were
excellent, some were competent, but there were a few who appeared to have little
understanding of the particular needs of passengers with differing abilities. Some
were reluctant to get out of their vehicles to place steps for higher vehicles.
There did not appear to be a particular demand that all taxis had to be wheelchair
accessible, but that the present numbers could meet the existing need if they were
more available and their operation could be better organised.
It was reiterated that passengers have a wide range of different disabilities and that
thought had to be given to ensure that the whole design of vehicles, colours,
lighting, signs/documents had to ensure that the taking of a taxi or private hire car
by a person with a disability, of whatever nature was made as stress free as
possible.
A letter from the Disability Advisory Group, dated 28th July 2003 to the Convenor of
the Licensing Committee highlighting their Group’s concerns is attached at
Appendix 14.
(d) The Need to Review the Designs of Vehicles which should be Allowed to be
Wheelchair Accessible Taxis in Aberdeen.
It had been hoped that the Department of Transport would have, by now, arrived at a
design for a wheelchair accessible taxi that would meet the needs of persons with most
common types of disabilities. In the absence of such a design, the Council has had to
set its own technical specifications.
From discussions with the Taxi Inspector and Chief Vehicle Examiner and from
discussions with disabled representatives, it is apparent that some of the designs of
wheelchair accessible taxis in operation are less satisfactory than others. Some designs
are higher off the ground than others, some have poor steps and some have steps and
ramps are built so that they are liable to stick shut as they are exposed to grit/snow and
liable to damage by speed bumps.
Whilst the ability of passengers to gain easy access to wheelchair accessible taxis is
important, it should not be overlooked that safety of passengers is of paramount
importance. Some taxi licensing authorities have decided that they will only allow taxis
which have been purpose built as taxis. They require a passenger to be loaded from the
side of the vehicle as loading from the rear is deemed to be unsafe and is difficult to
100
achieve at ranks. They also require the passenger to have more than on escape route
from the vehicle. The adoption of similar policies are obviously endorsed by the
manufacturers of vehicles that comply with these requirements. As with all safety
matters these are matters of risk assessment but these concerns should be
investigated.
It is therefore recommended that, unless the Committee decides to revert to a 100%
saloon car taxi fleet, the Committee instructs the Taxi inspector and Chief Vehicle
Examiner to carry out a review of the types of vehicles which are suitable for use as
wheelchair accessible taxis in Aberdeen. The results of the Review would be discussed
with the trade and then be brought before the Committee. If some designs were
deemed to be unsuitable, it would be recommended that they would only be allowed to
remain in the fleet for several years thereafter.
101
SECTION 20
TAXI TRADE’S POSITION AND POTENTIAL IMPACT ON THE TAXI TRADE OF
REQUIREMENT FOR MORE WHEELCHAIR ACCESSIBLE TAXIS
(a) Taxi Trade’s Position
The taxi trade, whilst being sympathetic to the needs of disabled passengers, do not
generally agree that it should be a mandatory requirement that all taxis should be
wheelchair accessible.
It has often been pointed out that the number of passengers who have to be carried
seated in their wheelchair are few and far between. The trade also point out that many
passengers, who may be disabled or elderly, prefer to use a saloon car vehicle, which
is more comfortable to travel in and the lower seat is easier for them to get into or out
of, compared to a wheelchair accessible vehicle, which will have high steps. Many
persons in wheelchairs also prefer to have the wheelchair stowed in the boot, whilst
seated in the passenger seat. Some of these passengers feel highly visible travelling in
a wheelchair accessible taxi, seated high up in their wheelchair and prefer to sit in the
seat.
In addition, as most passengers in wheelchairs pre book their journeys, many taxi
drivers consider that it is for large companies to have available a percentage of
wheelchair accessible vehicles in their fleet. Individual taxi operators hardly ever
encounter a passenger in a wheelchair at a rank and feel there is no need for them to
provide wheelchair accessible taxis.
Some drivers have also expressed a view that only a percentage of the fleet ought to
be wheelchair accessible, but the requirement should be rotated.
Some drivers of wheelchair accessible taxis try their best to assist passengers in
wheelchairs, but have expressed concerns that they may make a mistake in pushing a
passenger and an accident could result. They feel they would benefit from training in
the loading and securing of wheelchairs in vehicles.
There is also a perception that the taxi trade is being asked to change the way it
operates on the grounds of “political correctness”. If this is the case then the same
assistance which is provided to state subsidised transport, such as trains should be
available for taxis. The trade cannot just provide these services, and feel the impact on
their profits.
The trade have also expressed concern about the advisability of the Licensing
Committee moving towards the introduction of wheelchair accessible taxis before the
technical specifications have been established There are concerns that taxi drivers
may buy vehicles suitable for use in Aberdeen and then find out that they have little
resale value if the Regulations prove to be different.
The main grounds of opposition by the trade to taxis being wheelchair accessible is
based on costs and the difficulty of passing increased costs on to passengers, with the
102
consequence that an operator’s ability to generate a reasonable return on their
business will decline. As a consequence, many will be forced to leave the trade
altogether, move to private hire car operation, or reduce standards.
It is recognised that wheelchair accessible taxis cost more to purchase and run,
compared to saloon car taxis. There are a larger range of new designs of wheelchair
accessible vehicle now available and they are certainly cheaper than the black cab
design, but as prices for saloon cars has also declined, there is still an appreciable
difference in price between saloons and wheelchair accessible vehicles.
Many drivers use their vehicles for domestic purposes and a saloon car is more suited
for this than a wheelchair accessible vehicle. Many part time operators have indicated
that they would be reluctant to continue to hold a taxi licence. Some would leave the
trade altogether and some might move to a private hire car licence.
The trade are concerned that fares will not be increased sufficiently to cover the
increased costs of wheelchair accessible taxis. They are acutely aware of the public's
reluctance/inability to pay higher fares. This would inevitably result in fewer taxi trips
being undertaken and/or a shift to other forms of transport.
It should be said that the views expressed by the Aberdeen trade are shared by
colleagues across the UK. A range of similar comments can be seen on
http://www.taxi-driver.co.uk/ddaopinion.htm. Many of the large cities in England and
Wales have black cab fleets already, so most of the apprehension seems to originate
from areas with either a 100% saloon car or mixed fleet. It is recognised that taxi
operators could be tempted to move to private hire car operation, due to costs.
(b) Additional Costs of Operation of Wheelchair Accessible Vehicles
Cost of Vehicles
The following is an attempt at a summary of the costs of new vehicles. Obviously,
much depends on the make and model but is hoped these figures are useful for
comparison purposes. An estimate of the costs of second-hand vehicles (where
known) is also provided. These are more variable depending on the age and condition
of the vehicle. Vehicles have to be not more than five years old when first licensed (10
years for wheelchair accessible taxis), so second hand prices for 4 year old vehicles
were chosen. Some newer models of wheelchair accessible taxis, the Ford Torneo and
Fiat Doblo have not been in the fleet long enough for an estimate to be made of their
second hand value. All prices are approximate.
New
£
2nd Hand (4yrs old)
£
24,995
24,000
22,500
20,499
18,000
16,000
10,000
10,000
Wheelchair Accessible
TX2 (Black cab)
VW Sharan
Peugeot E7
Citroen LC7
103
VW Caravelle
Ford Torneo
Fiat Doblo Freedom
20,000+
15,000
14,100 - 15,100
10 – 12,000
?
?
13,000 –15,000
15,000 - 18,000
28,000
5,500 - 6,500
?
16 - 18,000
Saloon Cars
Ford Mondeo/Skoda Octavia,
Peugeot 405, Vauxhall Vectra
Higher specified models of above
Mercedes E Class
Prices of new cars have decreased over the last few years and this has carried through
to second hand prices. The prices of new TX 2’s have come down by around £2000
recently, due to competition and a reduced specification.
Fuel/Operating costs
Drivers have quoted the following estimates for fuel consumption for diesel cars Wheelchair accessible
miles per gallon
TX1 manual
TX2 manual
Euro 7 type
VW Sharan
Ford Torneo
Fiat Doblo
26/28
30
38/40
35/40
38/40
45
Saloon Car
Mondeo
Mercedes E Class
Automatic
Manual
38/42
34
38/40
It is of interest to note the improving fuel comsumption of newer wheelchair accessible
models, so that there is less of a differential between wheelchair accessible and saloon
cars. The Fiat Doblo appears to have good fuel consumption. The engine is apparently
powerful and efficient and the chassis relatively light.
Repair Costs
There appears to be little difference in the costs of replacement parts or repairs
between wheelchair accessible and saloon cars. There are marked differences,
however, dependent on the manufacturer and type of model. Parts for certain makes
will be standard and readily available. Specialist vehicles will require more expensive
parts. Vehicles purchased, subject to warranties, will probably require to repaired at
more expensive dealerships, where labour costs are higher. Some of the newer types
of vehicles operated as wheelchair accessible taxis use standard commercial vehicle
parts and this reduces costs and availability of parts.
104
In assessing the relevant operating costs of different types of vehicles, taxi operators
often underestimate the importance of being able to obtain replacement parts without
delay. If a vehicle cannot be used, because parts are unavailable, the cost of
replacement parts quickly pales into insignificance compared to the loss of income.
Overall
It would appear that the development of new wheelchair accessible vehicles, such as
the Fiat Doblo and the Ford Torneo, are reducing the difference in the costs of
operating a wheelchair accessible taxi. It will be of interest, however, to monitor the
longevity of these vehicles for continued use as taxis before a final decision could be
reached as to their long term operating costs.
The costs of operating a taxi over a year depend on the capital cost of the vehicle, its
depreciation, insurance, repairs, fuel and other costs. Some of this is dependent on the
number of miles driven in a year.
In order to establish the net increase in costs involved in operating a wheelchair
accessible taxi, as opposed to a saloon car taxi, it would be necessary to calculate the
increase in fixed and running costs. Concentrating on the costs of purchasing a vehicle
and the mileage costs could provide a rough estimate.
When setting the Taxi Fare Tariff, the Licensing Committee has regard to the AA Guide
to the costs of running a petrol or diesel car. These figures are updated every month by
the AA and calculate the running costs per mile of cars. This can be downloaded from
http://www.theaa.com/allaboutcars/advice.
Looking at the costs of running a diesel car from the AA on 13th December 2004, if a
taxi operator was to purchase a new Mondeo at £12,999, the cost per mile of driving it
for 30,000 miles per year would be 25.08 pence per mile. If he were to buy a Fiat Doblo
at £15,100, it would cost 28.54 pence per mile. If he bought a VW Sharan at £24,000,
the cost would be 36.50 per mile.
It is appreciated that these are estimates based on new vehicles used for domestic
purposes with lower mileage than specialist taxis and that the bands on the table are
wide. The figures do illustrate the increase in motoring costs as the costs of vehicles
increase.
The above examples would suggest that the motoring costs per mile would increase as
follows –
Fiat Doblo 13.8%
VW Sharan 45.5 %
An operator of a taxi would conduct a cost/benefit analysis to decide the type of vehicle
he wishes to operate. He may decide that a vehicle costing more to run per mile may
be worthwhile for dependability and customer satisfaction. Some taxi operators prefer
Mercedes rather than a cheaper make. Given that a taxi is liable to be exposed to
rough treatment by some customers, it is surprising that many operators choose more
expensive saloon cars, when a cheaper vehicle would suffice. This is obviously a
105
decision open to all operators, but it may be that such a decision is driven by a
preference to have an attractive looking car rather than by economic necessity. Many
of these drivers would be unhappy to spend the same amount of money on driving a
wheelchair accessible taxi, which some refer to as “bakers vans”.
51% of the Aberdeen taxi fleet is 2002 or later registration. There are, accordingly, a
large number of operators working quite happily with older vehicles. They can minimise
their costs whilst maximising their incomes. These operators would probably be most
affected should there be a move to a 100% wheelchair accessible taxi fleet, as they
would be moving from a low cost saloon car taxi to a wheelchair accessible taxi,
Given all of the above, it would have to be accepted that, all other things being equal,
the operating costs for a wheelchair accessible taxi are higher than those of a saloon
car taxi. The costs however may not be as high as feared by the trade.
It is difficult for an estimate to be given of the actual increase in costs faced by the
trade, given all the various factors involved. The additional extra costs for each
operator would depend on the type and age of vehicle he presently uses and the type
and age of vehicle he switches to.These are matters that need to be discussed in detail
with the trade.
(c) Possibility of Financial Assistance to Purchase Wheelchair Accessible Taxis
The trade throughout the UK have always considered that grants should be provided to
assist in the purchase of wheelchair accessible vehicles.
Dundee used to provide a grant of £1,500 for persons willing to purchase a wheelchair
accessible taxi. These grants are believed to be no longer available. There were very
few persons taking up the scheme. Enquiries have been made in Aberdeen in the past
as to the possibility of grants being made available to assist taxi operators to purchase
wheelchair accessible taxis, but funds are not available for such a scheme, with
resources being directed through the Taxi Card scheme.
Aberdeen, along with many other local authorities in Scotland, operates a Taxi Card
Scheme. This entitles persons with disabilities to have a third discount on taxi fares, for
up to 200 taxi journeys each year.
If the Council were to consider providing grants to taxi operators to switch to
wheelchair accessible taxis, based on £1,500 per grant, the total cost would be around
£945,000. Existing operators of such vehicles would no doubt consider it only
reasonable that they were entitled to receive the same subsidy. This would result in a
further £405,000 having to be found. By way of comparison, expenditure of £1.35
million, would be the equivalent of the allowing about 1,000 passengers to have a free
6 mile daytime taxi journey every fortnight, over a five-year period. A grant would
certainly ease the switch to wheelchair accessible vehicles, but operators would have
to bear permanently increased running costs in the long term, so that costs would
ultimately have to be recovered from increased fares.
There has been no suggestion from central government that financial assistance would
be available to assist the taxi trade to switch to wheelchair accessible taxis. Indeed,
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throughout the various policy announcements, it is stated that Councils should strive to
ensure the continued financial viability of local taxi trade to ensure that sufficient
numbers of taxis are available. This would indicate that it is intended, in the long term,
that the costs be borne by customers through fare increases.
(d) The Scope for Increases in Taxi Fares, the Ability/Willingness of Passengers to
Pay and Impact on the Demand for Taxi Services
The Licensing Committee is required to set maximum fares that taxis can charge. It is
required to give consideration to the costs of the trade in running vehicles. If the fare
scale is not accepted by taxi operators in the city, they are entitled to lodge an appeal
with the Scottish Traffic Commissioner. She can hear representations and decide on
an appropriate level of fares.
The system is designed to balance the desire of the public for low fares with the need
to provide a reasonable return for the trade. The laws of supply and demand apply, so
that if fares are too high, the trade will suffer as the public will be less inclined to use
taxis, and, if they are too low, taxi operators will leave the trade.
As part of the review of fares, comparisons are made with other Councils. Different
types of vehicles can be required in different areas and the market for taxi services is
different in each area. Direct comparisons are, therefore, difficult.
Fares were last reviewed in Aberdeen in the spring of 2004. An appeal against the
Committee’s decision not to increase fares (apart from one additional extra) was made
to the Traffic Commissioner. She did not support the appeal, but recommended that a
further review be undertaken. This review is ongoing.
Should the percentage of the taxi fleet in Aberdeen which is wheelchair accessible
increase beyond its present level of 30%, the Committee would, no doubt, face
increasing pressure from the trade to increase fares. If a request for an increase were
to be refused and appealed, the Traffic Commissioner would examine the costs of the
new types of vehicles as set out in (b) above. If the Commissioner supported the
claims, fares would be bound to rise. How far they would rise would depend on the
information presented to the Commissioner and accepted by her.
It is not known exactly how the public in Aberdeen would react to increased taxi fares.
Many already consider fares to be too high. Consultants could be employed to carry
out a survey into the public’s possible reaction to fare increases (referred to as the
Elasticity of Demand). Many taxi trips are taken of necessity and there may be no
alternative to paying increased fares. Increased taxi fares could encourage bus
companies to operate more late night buses if the public are unwilling to pay more for
taxis.
Apart from the unpopularity of taxi fares increasing, there would eventually come a
point at which higher fares would result in taxis being used less. Aberdeen is a
prosperous city, but nevertheless there are a large number of residents with limited
incomes. It is recognised that persons with lower incomes, which tend to include those
who are disabled or elderly, use taxis proportionally more than people in higher income
brackets. Although taxi fares could be subsidised for disabled or elderly passengers,
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substantially increased taxi fares would be a significant impact on low earners.
Guidance from the Scottish Executive is that, in setting fares, Licensing Committee’s
have to be wary of allowing social considerations to influence their decision, and
thereby restrict the level of taxi fares.
The Licensing Committee, in deciding that it wishes to increase the number of
wheelchair accessible vehicles would, therefore, have to accept that it would be
necessary, at some point and to some degree, to increase taxi fares in the city. The
level of such increases cannot be stated with any degree of certainty at this time.
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SECTION 21
POINTS FOR DISCUSSION
It is important, in the Corporate Director’s opinion, that taxi drivers regard the carrying
of passengers who wish to travel seated in their wheelchairs as an opportunity to
improve their professionalism, rather than as an undervalued and unremunerated
chore.
(a) Insurance to Cover Assistance to Disabled Passengers
At present, in terms of Section 13(3) of the Civic Government (Scotland) Act 1982, the
Committee cannot grant or renew an application for a taxi or private hire car licence,
unless the vehicle is covered by the minimum 3rd party liability insurance policy, which
is required for all motor vehicles in terms of the Part VI of the Road Traffic Act 1988.
This insurance cover is designed to cover claims arising from the use of a motor
vehicle on a road and covers death, personal injury and damage to property. This is
the minimum insurance required and taxi/private hire car licence holders usually obtain
comprehensive insurance, to enable them to recover the costs of damage to their own
vehicle from their insurers, rather than having to rely on making a claim against a third
party. Some, but not all, operators also obtain additional special taxi insurance,
covering loss of earnings due to damage to the taxi or ill health. Some of these
policies also provide cover against claims arising from the operation of the taxi, such
as injury to passengers caused by assistance given by taxi drivers.
The minimum insurance required in terms of Part VI of the Road Traffic Act also
extends to claims made by passengers in the vehicle. S145 states that the policy must
cover a claim “caused by, or arising out of, the use of a vehicle on a road”. A
passenger in a taxi is therefore be able to claim against such a policy.
The Corporate Director has some doubt as to whether a person in a wheelchair being
helped into or out of taxi by a driver would be able to successfully claim against a 3rd
party policy. They may be able to claim against a broader policy held by the taxi
licence holders.
It is also in the taxi operator’s own interest to be certain that he has appropriate
insurance cover to protect him against a claim from a passenger arising from such an
accident.
In the Corporate Director’s opinion, it may be desirable for the Committee to make it a
requirement that all taxi or private hire car operators have appropriate insurance cover
in relation to accidents arising from assistance provided by them to passengers,
whether in wheelchairs or not. It is the Corporate Director’s view that the making of
such a requirement, before a licence was granted or renewed, would be regarded as
unreasonable by the courts. The Committee would possibly be regarded as interfering
in matters of contract between the driver and passenger, without specific authorisation
by the 1982 Act. It would be preferable for these matters to be discussed further with
the trade and with the insurers.
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When this matter was discussed at the Review Group, there appeared to be
agreement that this was a matter which should be left to individual operators to decide
upon. It was therefore agreed that this was not a recommendation which the Review
Group would support.
The Corporate Director considers, however, that this matter should be left in this report
for the Committee’s consideration. The general purpose of licensing is to protect the
public. In the Corporate Director’s opinion, if taxi drivers duties are to be extended
significantly, by requiring them to do more than drive their vehicle, it is not
unreasonable to expect them to have appropriate insurance covering these additional
activities. Although such a requirement would add to operator’s costs, the premium
involved is believed not to be too high and would actually protect the driver should he
be sued.
It is therefore recommended that the Committee instruct the Corporate Director to
write to the Scottish Executive to highlight this issue and to suggest that some
consideration be given to introducing a statutory requirement to this effect. If it was
announced that such a requirement was to be introduced at a future date, the
insurance companies dealing with the trade could develop appropriate policies.
(b) The Proper Securing of Passengers in Wheelchairs
Vehicles approved for use as wheelchair accessible taxis have all been designed or
modified to accommodate passengers in wheelchairs. The design or modification
requires the wheelchair to be fitted either facing forward or to the rear and appropriate
safety belts, harnesses and locking devices for the passenger and wheelchair are
provided.
It has become apparent to the Taxi Inspector that wheelchairs are sometimes carried
sideways in vehicles and/or passengers and/or wheelchairs have not been secured
correctly. Several reports have been received of passengers falling over, if the vehicle
swerves suddenly, with a serious risk of injury. In many cases, the taxi driver has
revealed that he was unaware of how to transport passengers in wheelchairs and/or
was unaware of how to use the securing belts or straps.
The Taxi Inspector has knowledge of the different types of wheelchair accessible taxis
and can explain procedures to the drivers when they present the vehicle for
substitution or instruction. Drivers drive various vehicles and may not be aware of how
to use the straps provided. In the Corporate Director’s opinion, it would be preferable
if there was some system in place to ensure that all drivers are aware of the specific
straps and locking devices in individual vehicles.
Whilst generalised disability awareness training for taxi drivers would be of assistance
in helping drivers becoming aware of such issues, it is essential for drivers to know the
particular requirements for the vehicle(s) they drive.
It would be possible for the Taxi Inspector to carry out spot checks of drivers of
wheelchair accessible taxis and ask them to demonstrate the safe loading and
securing of a passenger in a wheelchair. The present legislation does not require the
driver to co-operate with such a spot check. A driver is only required to allow the Taxi
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Inspector to examine his vehicle. Failure to co-operate could be reported to the
Committee, but its powers are limited.
In the Corporate Director’s opinion, the only effective solution to this dilemma would be
to suggest to the Scottish Executive that the 1982 Act be specifically amended to allow
spot checks and to require the driver to co-operate. Appropriate powers would need
to be given to the Committee to enable it to deal effectively with the situation.
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SECTION 22
THE STRATEGIC DECISION ON THE TYPE OF TAXI/PRIVATE HIRE CAR FLEET IN
ABERDEEN FOR THE NEXT 10 TO 20 YEARS
The present Transport Strategy for Aberdeen, produced by the Council in 1999, included
the goals of doubling the number of wheelchair accessible taxis in the city (then at 161
taxis) by 2001 and to have all taxis capable of carrying wheelchairs by 2012.
The first target has been achieved. The Committee is now presented with a difficult choice
as to the whether or not it moves on to require all taxis to be wheelchair accessible in the
city within a relatively short period of time.
An attempt has been made in this report to set down the position of all parties involved in
these matters. The present arrangements appear to be working reasonably well. They are
less than perfect, however, and complaints are still received that passengers in
wheelchairs cannot obtain appropriate taxis. There may also be a suppressed demand for
taxi/private hire car services from disabled/elderly persons. Apart from cost, these groups
would probably like to travel more if more taxis were available to meet their needs and
there was less trouble involved in trying to obtain one. Part of the process of reducing
discrimination is to encourage the disabled or elderly to challenge their own acceptance of
the limitations placed on them by their disability.
The Committee’s options are, limited due the present legal requirements to ensure that all
taxi licence holders are treated equally. There is little likelihood of a practical solution
originating from central government in the foreseeable future.
The Committee will have to carefully consider the options available to it and the impact
these will have on the trade, disabled, elderly and all other members of the public who use
taxi or private hire car services in the city. The impact of the Committee’s decisions may
only become apparent after some time. Throughout the whole process of introducing and
monitoring change would be the necessity to consult widely with all affected parties.
This is, to a large degree, a decision for the Committee to make on social and policy
grounds. Any decision has to be seen against the desire by central government, the
Scottish Executive, the Council and society as a whole to reduce or eliminate
discrimination against persons due to their disability and/or age. Taxis are particularly
important to those who may be disabled or have their mobility impaired by age.
Any decisions made by the Committee now on the type and design of taxis permitted to
operate in the city will effectively determine the type and size of the fleet for the next 10 to
15 years. Although it would be possible for future Licensing Committees to reverse
decisions made on such matters, it would be very disruptive to the trade if there are major
swings in policy.
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SECTION 23
OPTIONS NOW AVAILABLE AS TO THE COMMITTEE AS TO TYPES OF TAXIS TO
BE PERMITTED TO OPERATE IN ABERDEEN
The prospects of legal challenge and the continuing delay in the introduction of mandatory
requirements for taxis require the Committee to decide which of the following options it
wishes to take –
(1) NO CHANGE OF POLICY
At present, only existing wheelchair accessible taxi operators and applicants for new
taxi licences are required to provide wheelchair accessible taxis. Assuming any
challenge to this policy is unsuccessful
the advantages of this option are –
(1) there will continue to be a gradual increase in the number of wheelchair accessible
taxis. It has taken 11 years for the number of wheelchair accessible taxis to reach
30% in Aberdeen.
Assuming a challenge to this policy is successful the disadvantages of this option are (1) (a) the Council would have to bear the costs of such an action.
(b) The Committee would be less likely to receive the support of wheelchair
accessible taxi operators to a measured increase in the number of such vehicles. If
the Committee then wished to change its policy to require a 100% fleet made up of
such vehicles, it might be forced into introducing these vehicles in a shorter time
than it, or the trade, would prefer.
(c) If the Committee made no change to its policy, new entrants to the trade could
refuse to provide wheelchair accessible taxis and all existing operators of such
vehicles would probably, over several years, apply to substitute saloon car taxis on
to their plates. There would, therefore, be few, if any, wheelchair accessible taxis in
the fleet after a two or three year period, until mandatory provisions were introduced
(if at all) by the Scottish Executive under the Disability Discrimination Act 1995.
(2) If a challenge is unsuccessful, the principal incentive to hire out saloon car taxi
plates would continue to exist. The practice has already slowed down the
introduction of wheelchair accessible taxis in Aberdeen.
The Corporate Director would not recommend this option.
(2) REMOVE REQUIREMENT THAT TAXIS HAVE TO BE WHEELCHAIR ACCESSIBLE
There would be no requirement for wheelchair accessible taxis to be used by any taxi
operators. Existing operators of such vehicles would be permitted to substitute saloon
taxis. Saloon cars would be permitted until the Scottish Executive introduced
mandatory requirements (if at all) under the Disability Discrimination Act.
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The advantages of this option would be –
(1) The removal of uncertainty.
(2) The possible avoidance of time consuming and expensive litigation, with an
uncertain outcome,
(3) The avoidance of the need to develop local policies now as to the suitability of
types of vehicles for use as wheelchair accessible taxis.
(4) The creation of a level playing field for all taxi operators.
(5) The incentive to hire out plates being reduced (but not eliminated) and
(6) Taxi fares would not need to be increased to cover the higher costs of these
vehicles.
(7) The introduction of (a) Regulations by the Scottish Executive, on how the taxi
provisions of the Disability Discrimination Act 1995 are to be introduced in
Scotland, and (b) Technical Guidance by the Department of Transport, on the type
of vehicles which would be suitable as accessible taxis, would enable the Council
to formulate a local policy on a firmer legal foundation. Taxi operators would
hopefully then be able to purchase more affordable vehicles produced by large car
manufacturers, designed in accordance with the Department of Transport’s
Guidelines.
The disadvantages of this option would be (1) Economic pressure would result in most of the 259 operators with wheelchair
accessible taxis reverting to saloon taxis over a two or three years, so that there
would be very few wheelchair accessible taxis in Aberdeen. This would be to the
detriment of persons who have to travel in taxis in their wheelchair.
(2) As the Scottish Executive appears at this time to favour each Council formulating
its own policy on accessible taxis, the Council may have to develop its own policy
on such matters within the next decade.
(3) The Council would probably be subject to criticism for deserting its policy on
wheelchair accessible taxis voluntarily, whilst other Councils have adopted similar
policies albeit on a smaller scale.
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(3) ACCELERATE THE INTRODUCTION OF ACCESSIBLE TAXIS BY REQUIRING ALL
TAXIS TO BE WHEELCHAIR ACCESSIBLE
If the Committee wanted all taxis to be wheelchair accessible, the Corporate Director is
of the view that it would be unreasonable for this to take effect “overnight”.
A more measured introduction of such vehicles, taking into account the average life
span of saloon car taxis in the fleet and the financial implications on the trade are more
likely to find favour in the courts. Consultation with the trade on time-scales would be
essential.
Following discussions with the Taxi Inspector, a suggested period of 4 to 5 years
seems reasonable. It is estimated that saloon car taxis are replaced every 3 to 4 years
in any event due to wear and tear. Existing wheelchair taxi operators have indicated
acceptance of a transitional period, but the exact period needs to be discussed.
Applicants for new taxi licences would still be required to provide accessible taxis and
existing wheelchair accessible taxi operators would still require to operate these
vehicles.
The following is a suggested timetable, should the Committee decide in principle, on a
100% wheelchair accessible taxi fleet, (a) Announcement of Committee policy decision
(b) One year after the Committee’s Decision – When a saloon car taxi is being
substituted, the licence holder would require to provide a wheelchair accessible
taxi. If the licence holder refused to supply a wheelchair accessible taxi, the
substitution application would be referred to Committee, with a recommendation
that it be refused, on the grounds that the vehicle was not suitable due its design.
(c) During 4th year following announcement – Any remaining saloon taxi operators
would require to change to a wheelchair accessible taxi at renewal, otherwise the
licence would be refused on the grounds the vehicle was not suitable.
Observing this timetable, the taxi fleet would be 100% wheelchair accessible within
5 years of Committee’s announcement.
The reason that a period of one year is set down following the announcement of the policy
is to provide due notice to saloon car taxi operators. Alternatively, during this year they
could substitute a newer saloon car on to their licence, in the hope that it could be be
operated until it a compulsory switch was required during the fourth year following the
policy announcement.
Possible Advantages of this option –
(1) All taxis in Aberdeen would be accessible to disabled persons wishing to travel
seated in their wheelchair within 5 years.
(2) The creation of a level playing field for all taxi operators within 5 years.
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(3) The reduction (but not elimination) of the principal incentive for the hiring of plates
after 5 years.
Possible Disadvantages
(1) It is likely that taxi fares would increase to cover the trade’s greater costs. This may
have an impact on the willingness/ability of the public to use taxis.
(2) There may be a shift by taxi operators to private hire car licences. This would
reduce the number of taxis available for hire to the public at taxi ranks or for hailing
on the streets. Phone bookings are however with the public and such a switch might
not turn out to be so detrimental. Many taxi drivers in Aberdeen are affiliated to
radio control centres already and they would have to balance the increased costs of
providing a wheelchair accessible vehicle against the benefits of being able to pick
up on the street.
(3) There could be a shift of taxi operators to Aberdeenshire Council, which does not
require wheelchair accessible taxis at this time. This could possibly tempt some of
these operators to illegally ply for hire as taxis in Aberdeen.
(4) The Council would be deprived of an opportunity to only have a percentage of its
taxi fleet wheelchair accessible.
(4) ABERDEEN TAXI GROUPS 4TH OPTION.
They have suggested that all persons holding taxi licences as at 1st July 2005 would have
6 months to decide whether they wished their plate to be a wheelchair accessible or
saloon car plate. Should a saloon taxi plate holder wish to switch, he would have to
substitute a wheelchair accessible taxi by 31st December 2005. If a wheelchair accessible
taxi plate holder wished to move to a saloon car plate during this initial 6 months, he would
not be required to physically substitute a saloon car on to his plate, but could do so at any
time to suit themselves. As currently, applicants for new taxi licences would have to
provide a wheelchair accessible taxi.
As an incentive for saloon plate holders to switch to, or for wheelchair accessible plate
holders to remain with, wheelchair accessible taxis, it is suggested by ATG that licence
holders who have held a wheelchair accessible plates for five years would be allowed to
transfer their plate. This would enable them to sell their plate when they wished to leave
the trade. Only wheelchair accessible plate holders would be able to use this facility. The
purchaser of the plate would make an application for a licence in his own name, without
having to go on the waiting list, and the Council would agree to grant the licence to this
person, proving the existing licence holder consented.
ATG amended its original version of the option by setting down 2020 as the target date
when all taxis in Aberdeen would require to be wheelchair accessible. ATG consider that
this would allow existing persons in the trade adequate advance notice of the change.
ATG’s view is that this option would allow those wheelchair accessible licence holders who
did not wish to operate wheelchair accessible taxis to revert to saloon car taxis and that
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there may be many saloon car plate holders who would find the incentive to switch to a
wheelchair accessible taxis attractive. ATG accept that there is a risk in this option that the
incentive might be insufficient and that many wheelchair accessible taxi licence holders
may elect to shift to saloon plates. This could result in there being very few wheelchair
accessible taxis in Aberdeen. It is hoped that as many taxi licence holders as possible will
complete the response form attached, so that an estimate could be obtained on the uptake
of wheelchair plates, if this option was adopted.
Under this option, persons wishing to enter the trade as self-employed taxi drivers would
therefore have a choice –
They could go on the waiting list, then apply for their own licence and operate a wheelchair
accessible taxi.
(1) Avoid the waiting list by agreeing to pay a wheelchair accessible plate holder and
having his plate transferred to them, or
(2) Hire an existing saloon car taxi operator’s plate or vehicle.
This option could enable the city to have a proportion of its fleet wheelchair accessible,
rather than having to have the whole fleet either wheelchair accessible or not. The goal of
having only a proportion of taxis in each local authority area wheelchair accessible
appears to be the preference of the Scottish Executive and certain disabled groups.
The Disadvantages of this Option, in the opinion of the Corporate Director, are significant (a) A two-tier taxi fleet would still exist. ATG wish the Council to simply ignore Counsel’s
opinion that two-tier taxi fleet cannot continue. The existing operators of wheelchair
accessible vehicles, such as WAG, may be happy to switch to saloon taxis and an
immediate legal challenge against the Council’s policy could therefore be avoided.
However, there would be nothing to prevent an applicant for a taxi licence, or an
existing licence holder, who had elected to retain a wheelchair accessible plate, but
had since changed his mind, raising a legal challenge. If such a challenge was made
and was successful, as it appears it would be, the Council would be forced into
choosing to have either a 100% saloon car or 100% wheelchair accessible fleet. ATG
have argued that the likelihood of challenge would be small, as all drivers would have a
choice.
(b) The incentive to hire out plates would remain and would probably increase. The ability
to continue hiring out plates appears to the Corporate Director to be one of the main
reasons behind the formulation of the 4th Option. Although there may be attractions in
the 4th option, in that it possibly allows only a percentage to the fleet being wheelchair
accessible, the encouragement of hiring out is, in the Corporate Director’s opinion, a
strong argument against the adoption of the 4th option. This option would be to their
detriment in the Corporate Director’s opinion.
(c) A taxi licence holder should not be entitled to receive a capital sum when he leaves the
trade. The nature of the trade is such that the plate holder ought to make his return by
operating the taxi. His business may have a small goodwill value which he can sell, but
this would only consist of the value of any telephone number or contacts. It is often
argued that the ability to sell plates should be permitted to provide a plate holder with a
retirement fund. The Corporate Director would refer to the Office of Fair Trading view
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that plates being sold for considerable sums can form a barrier for entry to the trade for
new drivers and is contrary to the interests of consumers.
(d) The value of the incentive being offered to operators to have wheelchair accessible
plates depends on the Council retaining a limit on the number of taxis. This is not
certain, given the Office of Fair Trading recommendation in 2004 that Councils should
remove limits, unless they could justify their retention. The Council’s policy is under
review.
(e) The value of the incentive would also depend on the number and cost of saloon car
plates being hired out.
(f) Persons on the waiting list could raise a legal challenge if the Council allows persons
applying for transfers to “jump the queue.” Although “transfers” of licences are not
permitted in Scottish law (unlike England), they could be accommodated by the
Council, by its granting licences to such persons. Waiting lists have no sanction under
legislation, but the Council is required to operate in a fair manner. There is no case law
on this point, but the Corporate Director considers that allowing some applicants to
avoid the waiting list could possibly be regarded be a breach of natural justice and
possibly amount to maladministration.
PRIVATE HIRE CARS
Although the provisions of the Disability Discrimination Act 1995 are restricted to
dealing with taxis, it is the view of the Corporate Director that there is nothing, in
theory, at present, to prevent the Committee requiring all Private Hire Cars to be
wheelchair accessible. Disabled groups have indicated that the majority of their
members use the telephone for pre-booked hires and the ability to obtain a taxi at a
rank or by hailing one on the street is of secondary importance.
It is not recommended, however, that the Committee exercise this option at this time.
The high steps on wheelchair accessible taxis can present difficulties to certain
passengers, such as the elderly. If it is decided that all taxis should be wheelchair
accessible, it will be necessary to ensure that they are accessible to all persons as far
as possible. Notwithstanding that it is suggested in this report that the specification of
wheelchair accessible taxis be reviewed to ensure that the “high step” problem is
minimised, it would be beneficial to have a pool of saloon car private hire car vehicles
available for the forseeable future.
Once all taxis are wheelchair accessible, there may be some advantage in considering
whether private hire cars should also be wheelchair accessible. There are indications
that the Department of Transport is considering whether private hire cars should be
incorporated into the mandatory provisions of the 1995 Act. Matters may be clearer
once the detailed technical regulations are known. It is possible that swivel sets may be
required for private hire cars.
At this time, therefore, it is not recommended that private hire cars be wheelchair
accessible. This can be reviewed if there is a major shift from taxis to private hire cars,
following the introduction of a 100% accessible taxi fleet, and the Committee considers
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that there are insufficient vehicles to carry persons wishing to travel seated in their
wheelchairs.
(I:\apps\Donald2\ReportTaxiRevFinalCommittee)
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APPENDIX 1
SUMMARY OF RELEVANT LEGISLATION
DRIVERS
(a) Driving a Hackney Carriage in England and Wales
S 46 of the Town Police Clauses Act 1847 – “No person shall act as a driver of any
hackney carriage licensed by (this) Act to ply for hire without first obtaining a (hackney
driver’s) licence …”
S47 of the said Act continues –“If any person acts as such driver as aforesaid without
having obtained such a licence …. every such driver … shall be guilty of an offence…”
The case of Yates v Gates (1970) 2 Q.B. 27 confirmed that, once a vehicle was
licensed as a hackney carriage, it cannot be driven by anyone who does not hold a
hackney driver’s licence, regardless of the fact that on the particular occasion it was
not plying for hire. The Court confirmed that a hackney carriage did not change its
status from moment to moment due its being used to ply for hire and then not.
(b) Driving a Private Hire Vehicle in England and Wales
S 46(1)(b) of the Local Government (Miscellaneous Provisions) Act 1976 – “ … no
person shall … act as driver of any private hire vehicle without having a (private hire
driver’s licence).
S46(2) “if any person knowingly contravenes the provisions of this section, he shall be
guilty of an offence.
(c) Driving a Hackney Carriage in Aberdeen before 1984
S 151 of the Aberdeen Corporation (General Powers) Confirmation Act 1938 is based
on the 1847 Act above – “ Any person who acts as a driver of a hackney carriage
without having obtained a (hackney driver’s) licence …. shall be guilty of an offence.”
(d) Driving a Taxi or Private Hire Car in Scotland after 1984
S 13 (1) of the Civic Government (Scotland) Act 1982 – “A licence, to be known as a
“taxi driver’s licence”, or, as the case may be, a “private hire car driver’s licence”
shall… be required for driving or otherwise having charge of a taxi or private hire car.”
S 7 (1) of the Act –“ Any person who without reasonable excuse does anything for
which a licence is required … without having such a licence shall be guilty of an
offence”.
It is of interest to compare the English and Scottish requirements, with the former
stating that a licence is required for someone acting as a driver and the latter referring
to someone driving or otherwise having charge of the vehicle. The judicial reasoning
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applied in Yates v Gates case could arguably apply to the Scottish position as the test
seems to be the question as to whether the person was driving or having charge of the
vehicle on the road, not whether it was being used to ply for hire. There are no decided
cases on their point in Scotland, however. This point is discussed further in Section 1
of the paper.
VEHICLES
(a) Hackney Carriages in England and Wales
S 45 of the Police Clauses Act 1847 - “If the proprietor or part proprietor of any
carriage (or any person concerned, either solely or in partnership with any other
person, in the keeping, employing, or letting to hire of such carriage) permits the same
to be used as a hackney licensed carriage …. without having obtained a licence as
aforesaid for such a carriage, or if any person be found driving, standing, or plying for
hire with any carriage….for which such licence as aforesaid has not been previously
obtained, ….. every such person so offending shall…be liable to a penalty …”
The actual licence issued is in the proprietor’s or joint proprietor’s names. If there are
other persons concerned in the keeping, employing, or letting to hire of the hackney,
their names are merely noted by the licensing authority. The obligations under the
licence mainly rest with the proprietor(s).
Therefore, if the police find a vehicle on the street and they have evidence that it was
being used as a hackney carriage and there is not a hackney carriage licence in
existence for this vehicle, they would establish who the proprietor of the vehicle was.
This proprietor would be prosecuted. The police would have the also have the ability to
prosecute any driver or person involved in the keeping, employing or letting for hire of
the vehicle. To avoid prosecution, these other people would be advised to ensure that
the proprietor of the hackney held the licence in his own name.
There is no definition of the term “proprietor” in the Act, so this would refer to the
person who actually owned the vehicle. Compared to the position of private hire car
vehicle licences set out in (b) below, owner/drivers with a hackney carriage licence
wishing to obtain a new vehicle to use as a hackney would be reluctant to purchase it
by hire purchase or by hiring it from someone else, as they would have to give up their
hackney carriage licence and the finance company or the lessor of the vehicle would
require to hold a new hackney licence in their name.
S 49 of the Local Government (Miscellaneous Provisions) Act 1976 requires a
proprietor of a hackney carriage to notify the Council within 14 days if he transfers “his
interest” in the hackney carriage to another person. This presumably refers to a person
disposing of his proprietorial interest by selling the vehicle outright. The leasing of the
vehicle to another person would still leave the permanent ownership of the vehicle with
the proprietor and the hackney licence would require to remain in the original
proprietors name. If the vehicle is sold outright, the new proprietor would have to obtain
a new hackney carriage licence in his own name.
The case of Weymouth Borough Council Ex Parte Teletax (Weymouth) Ltd 1947 1 All
ER 779 confirmed that if the proprietor of the hackney carriage sold the vehicle during
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the currency of the licence, the new proprietor was entitled to go to the Council and ask
for his name to be entered in the licence.
Accordingly, the proprietor of the vehicle to be used as a hackney carriage would
require to hold a hackney carriage licence in his own name.
(b) Private Hire Vehicles in England and Wales
S 46(a) of the Local Government (Miscellaneous Provisions) Act 1976 states – “ No
person being the proprietor of a vehicle ….. shall use or permit the same to be used
….. as a private hire vehicle …. without having for such a vehicle a current licence (for
a private hire vehicle)”.
As with the 1847 Act, the licence application is made by the proprietor(s) of the vehicle
and the licence is granted in his (their) name(s). Again also, if there are persons other
than the proprietors who are concerned with the keeping, employing or letting on hire
of the vehicle, their names are merely recorded on the licence by the local authority.
Unlike the 1847 Act, the term “proprietor” is defined in S 80 of the 1976 Act –“includes
a part proprietor and, in relation to a vehicle which is the subject of a hiring agreement
or hire-purchase agreement, means the person in possession of the vehicle under that
agreement.”
The provisions of S 49 of the Local Government (Miscellaneous Provisions) Act 1976
as to the proprietor notifying the Council of his transferring his proprietorial interest
apply to Private Hire Vehicles also.
Accordingly, the proprietor of the private hire car vehicle would have to hold the licence
in his name. However, unlike hackney licensing, if a driver was using a vehicle subject
to a hire purchase agreement, or hiring the vehicle from some one else, the driver
would hold the licence as he was in possession of the vehicle.
(c) Hackney Carriages in Aberdeen before 1984
The relevant provisions within the Aberdeen Corporation (General Powers) Order
Confirmation Act 1938 are, in effect, the same to those in the 1847 Act.
S 149 states that ” Any proprietor or part proprietor of any hackney carriage and any
person concerned either solely or in partnership with any person in the keeping
management or letting for hire of any hackney carriage to be used as a hackney
carriage … without having obtained a licence for such a hackney carriage … or any
person who shall be found within the city driving standing or plying for hire with any
hackney carriage for which a licence has not been previously obtained ….. shall be
guilty of an offence.
As with the 1847 Act, the licence is issued in the proprietor’s name and he had to
comply with the majority of the requirements of the licence. Other persons involved in
the keeping, management or letting for hire of the vehicle were noted on the licence for
information purposes only.
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There is no definition of “proprietor”, so this would again refer to the owner of the
vehicle, regardless of whether the vehicle was subject to a hire or Hire Purchase
agreement.
There was no equivalent in the 1938 Act to S49 of the Local Government
(Miscellaneous Provisions) Act 1976 as regards the requirement for a licence holder to
notify the Council within 14 days of his ceasing to have the proprietorial interest in the
relevant vehicle. As the system was very similar to the English provisions, the new
owner would merely notify the Council that he was the new proprietor, they would
amend the licence and the new proprietor could then start to use the hackney.
Accordingly, the proprietor of a vehicle to be used as a hackney carriage in Aberdeen
before 1984 would have been required to hold the licence for the vehicle.
(f) Taxis and Private Hire Cars in Scotland after 1984
The system introduced under the Civic Government (Scotland) Act 1982 makes no
reference to “proprietors” of vehicles requiring licences. The entirely new concept of
“operation” of a vehicle was introduced.
S 10(1) states that “ A licence, to be known as a “taxi licence” or, as the case may be,
a “private hire car licence”, shall be required for the operation of a vehicle as -(a) a taxi;
or (b) a private hire car.”
There is no definition in the Act, or in Guidance Notes issued by the Scottish Executive
or case law as the meaning of the term “operation”. An attempt to produce an
interpretation is made later in this paper.
S 7(1) states that –“ Any person who without reasonable excuse does anything for
which a licence is required …. without having such a licence shall be guilty of an
offence”.
The above section applies to all types of licences covered by the 1982 Act such as
window cleaners, street traders etc. S 10 to 23 in the Act contain the detailed rules for
the licensing of taxis and private hire cars and S 21 contains a further list of detailed
offences that can be committed by persons in relation to these vehicles. The Police
and the Procurator Fiscal can decide which of these sections they wish to use to
prosecute an offender. In theory a person could be charged under both sections, but it
is probable that only one of the sections would be used.
S 21(1) states – “if any person – (a) operates, or permits the operation of, a taxi within
an area in respect of which its operation requires to be but is not licensed …., or (b)
picks up passengers in, or permits passengers to be picked up by, a private hire car
within an area in respect of which its operation requires to be licensed but is not
licensed … that person shall be guilty of an offence.”
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Accordingly, the person who requires to hold a taxi or private hire car licence in
Scotland after 1984 is the person who operates the vehicle as a taxi or private hire car.
The ownership position of the vehicle is irrelevant.
G/Apps/Donald2/ReportTaxiFinalCommittee/DM