APPENDIX A
Complaint against Dover District Council
Complaint No C100369
Professional Standards Investigators Report
Contents:
Introduction
1
The Scope of the Investigation
2–3
The Law
3
Sequence of Events
4–7
The Investigation
7 – 13
Outstanding Issues
13 – 15
Conclusions
15
Recommendation
16
Appendices
Appendix 1
The Complaint to the Local Government Ombudsman
and accompanying papers (not supplied).
Appendix 2
Paper prepared by the Trade dated 11th August 2004
and minutes of a meeting held on the 16th September
2004 (not supplied).
19
Complaint against Dover District Council
Complaint No C100369
Professional Standards Investigators Report
1.
Introduction
1.1
The complaints in this case are brought by the Dover Federation of Licensed
Taxi Operators (DFLTO) on behalf of the organisations membership.
1.2
The DFLTO raises a significant number of complaints against Dover District
Council (DDC). These are to be found in the complaint form to the Local
Government Ombudsman (LGO) dated 11th June 2004 and accompanying
papers (appendix 1) and in a document dated 11th August 2004 (appendix 2).
1.3
The complaints may be summarised as allegations that Officers’ have
provided incorrect, biased and misleading information to Members, the public
and the trade regarding a variety of matters including enforcement,
delimitation, de-zoning, management of licensing budgets, vehicle and driver
requirements and the reasons for prolonged and unacceptable delays in
carrying out an unmet need survey.
1.4
The DFLTO allege that as a result of this failure to communicate information
accurately and correctly, decisions have been made which adversely affect
the public and the trade.
1.5
The DFLTO further allege that DDC has either disregarded the views put
forward by the trade or failed to treat such views with the respect they
deserve.
1.6
The DFLTO argue that these alleged failures adversely impact on public
safety and the ability of their membership to sustain an acceptable standard
of living with all that implies for the provision of a good transport service to the
public.
1.7
In their complaint to the LGO the DFLTO requested a full investigation by an
outside body.
1.8
In accordance with the requirements of the Local Government Act 1972, the
LGO referred the matter to the Council to enable the Council’s complaints
procedure to be used to investigate the issues raised.
2.
The Scope of the Investigation.
20
2.1
I met the officers1 of the DFLTO at the offices of DDC on Wednesday 11th
August. During the course of this meeting I was handed a document dated
11th August and was advised this formed the basis of the DFLTO’s complaints
against the Council they wished investigated.
2.2
These complaints extend over several pages and to avoid unnecessary
duplication they are produced in full in appendix 2.
2.3
Many of these complaints relate to relatively minor issues and these, together
with the more substantial complaints, were subject of a full days discussion
between the officers of the DFLTO, their National Chairman and the Chief
Environmental Health Officer (CEHO) and her senior licensing staff at a
meeting at the offices of DDC on 16th September.
2.4
I chaired the meeting and the Professional Standards Officer (PSO) took full
notes. For ease of reference these are also included in appendix 2.
2.5
It is my view that these issues were fully and properly debated and that an
understanding was reached by both sides.
2.6
I do not propose examining each of the issues debated on the 16th September
in this report. The document dated 11th August and the notes of the meeting
prepared by the PSO are sufficiently comprehensive to identify the nature of
the grievances and outcome.
2.7
There is no evidence of maladministration with injustice in respect of any of
these matters. It is my view that a number of the difficulties and concerns
discussed arose from misunderstandings and, in some cases, a lack of timely
communication.
2.8
I will refer further to these conclusions in sections 7 (conclusions) and 8
(recommendations) of this report.
2.9
That said, a number of the complaints raised are both serious and complex
and are fully reported in section 5 of this report.
2.10
These complaints are as follows:
Complaint 1: That the Council failed to properly enforce the
conditions, rules and requirements governing the issue of, and
use of, rural hackney carriage licences.
Complaint 2: That the Council improperly delayed the unmet
demand survey required by the sub-committee at their meeting
on the 17th March 2003.
Complaint 3: That officers’ provided incorrect, biased and
misleading information to Members, the public and the trade
regarding delimitation and de-zoning so adversely and
1
The chairman, Mr Colin Kingsnorth, the secretary, Ms Karen Polgati and the Treasurer, Mr
Dennis Carter.
21
improperly impacting on the processes of consultation and
decision making.
Complaint 4: That the Councils decision to de-zone is contrary to
the interests of the public and the trade.
2.11
During the course of the meeting on the 16th September it was also agreed
that I would examine the following three issues.
Issue 1:
To clarify an apparent ambiguity which enables the
owners/drivers of rural hackney carriages to use their vehicles
for private hire in more favourable circumstances than is
available to hackney carriages operating in the Dover and Deal
zones.
Issue 2:
To determine whether the DFLTO might be
provided with the opportunity to be represented at meetings of
the sub-committee.
Issue 3:
To consider whether, in certain clearly defined
circumstances, officers might be provided with delegated power
to plate a vehicle over three years old for a temporary period.
2.12
These additional issues are considered in section 6 of this report.
3.
The Law.
3.1
The law and legal opinion as to its proper application to a number of the
issues in question is provided in Counsel’s advice2 dated 5th December 2002
to the Council (hereafter referred to as Counsel’s advice) and in the legal
advice3 dated 31st August 2004 provided for the purpose of my investigation
(hereafter referred to as the Butterfield advice).
4.
Sequence of Events.
2
Mr Clive Lewis, a Barrister in chambers at Kings Bench Walk, Temple.
Mr Roger Butterfield, Solicitor and Managing Director of Butterfield Consultancy Limited,
Bradford, a company specialising in the provision of legal advice and guidance on licensing
matters.
3
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4.1
The report of the Hackney Carriage and Private Hire Committee dated 15th
September 1994 provided the procedure for determining the issue of hackney
carriage rural plates as follows:
“That in order to secure that vehicles bearing a rural plate are used to
provide a rural service the Council do not licence any Hackney
Carriage for the rural area in circumstances in which it appears that
the vehicle will be engaged in Private Hire work in the Dover and Deal
licensing areas on anything more than an incidental basis.”
4.2
On the 4th October 1999 the DFLTO wrote to DDC voicing concerns
regarding the issue of 2 rural hackney licenses to a Dover town based private
hire company.
4.3
The Director of Health and Housing addressed these concerns in his letter of
11th October 1999.
4.4
In May 2002 the DFLTO wrote to the Licensing section requesting a meeting
to discuss a number of issues including the need for taxi ranks in Dover and
concerns that rural hackney taxis’ were working in the Dover town area.
Despite a second letter in July 2002, the requested meeting did not take place
until February 2003.
4.5
At a meeting of the Regulation and Licensing Committee on 14th May 2002
the Committee were advised by the Head of Legal Services that the existing
practice to restrict the issue of rural hackney carriage licenses, reproduced in
paragraph 4.1, might be open to successful legal challenge.
4.6
It was agreed that four current applications be deferred pending receipt of
Counsel’s opinion as to the robustness of the then existing practice.
4.7
Counsel addressed this issue in paragraph 8 of his report dated 5th December
2002:
“Secondly, I am asked whether the Council could refuse a licence on the
grounds that the proprietor does not have a commitment to providing a rural
service, or wants simply to maintain the opportunity of undertaking private
hire work in Dover, whilst being free to ply for hire in the rural controlled area.
In my opinion, there is a very real risk that a refusal of a hackney carriage
licence on these grounds would be unlawful as those considerations are not
material to the grant or refusal of a licence.” (Emphasis added).
4.8
The minutes of the meeting of the Hackney Carriage and Private Hire
Licensing Sub-committee (hereafter referred to as the sub-committee) of 6th
February 2003 show that rural hackney licenses were granted to the two
applicants who attended in person, but that the remaining four applications
were deferred ‘to permit the applicants to make further representations…..in
support of their applications.’
23
4.9
The sub-committee reconvened on the 17th March 2003 to consider the four
applications deferred at their meeting on the 6th February and a further three
applications made since that meeting.
4.10
The minutes identify that the sub-committee resolved that all the applications
be deferred to permit a survey of unmet demand in rural areas to be
undertaken ‘as soon as reasonably possible.’
4.11
On 14th April 2003 Cabinet decided to advise the Council “that the Cabinet
supports the proposal to invite the Chief Environmental Health Officer
(CEHO) to prepare a report for the Regulation and Licensing Committee
outlining options for the future development of the Hackney Carriage service
within the District.”
4.12
A consultation exercise was carried out in May and June 2003 involving the
distribution of questionnaires to licensed Hackney and Private Hire drivers.
4.13
The required report was considered by the Regulation and Licensing
Committee on 28th October 2003 who resolved:
“That Cabinet be advised that this Committee will defer consideration
of this matter to permit further consultation with the hackney carriage
trade and other relevant bodies such as the Police and to receive the
decision of Cabinet from its meeting to be held on 3rd November
2003.”
4.14
On 3rd November 2003 Cabinet decided:
“That this matter be deferred in order that full public consultation
should now take place on both the issues of delimitation and dezoning before any decisions are made by the Council.”
4.15
The required consultation took place in December 2003.
4.16
The resultant report by the CEHO was considered by the Regulation and
Licensing Committee at its meeting on 2nd March 2004 who resolved that a
demand survey of the whole district be undertaken and that any changes
recommended be implemented.
4.17
This effectively ended the question of delimitation4 and enabled the process
recommended by the sub-committee at its meeting of 17th March 2003 to be
started.
4
Mr Butterfield confirmed that until this decision was taken there was no requirement or
benefit in commissioning an unmet need survey. However, it is his view that once this
decision was taken there was no need for any further delay in commissioning the unmet need
survey.
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4.18
Cabinet decided at its meeting on 29th March 2004 to create one licensing
zone for the whole of the Dover District and requested the CEHO implement
the notification requirements provided by paragraph 25 of Schedule 14 to the
Local Government Act 1972.
4.19
On the 5th April 2004 Scrutiny Committee called in the de-zoning of the
hackney carriage areas to consider the adequacy of public consultation.
4.20
The Committee resolved that at the expiry of the 28-day publicity consultation
period and prior to a final decision being taken by the Cabinet, a pre-scrutiny
would be undertaken whereby further evidence from interested parties would
be considered prior to making final recommendations to the Cabinet.
4.21
On the same date, the Cabinet agreed to accept the recommendation of the
Scrutiny (Management) Committee.
4.22
On the 21st June 2004, the Scrutiny Management Committee considered the
resultant CEHO’s report and received verbal presentations from a number of
interested parties including the secretary of the DFLTO.
4.23
The Committee accepted that the consultation process was properly
conducted and adequate but recorded some reservations about the phasing
of certain questions. Notwithstanding these reservations, the Committee
concluded they were not of sufficient weight to devalue the consultation
process and agreed with the Cabinet decision to de-zone the area.
4.24
On 29th July Cabinet agreed to make the whole of the administrative district of
the Council one controlled zone for the purposes of Hackney Carriage
Licensing and that this resolution be sent to the Secretary of State for
approval.
4.25
Throughout this process there was a considerable exchange of
correspondence between the DFLTO, Officers’ and Members of the Council.
4.26
Invitations to tender for the unmet demand survey for the whole district were
sent out on 13th August 2004. It is intended that Cabinet will consider the
submitted tenders at their meeting on 8th November 2004.
4.27
On the 11th June 2004 the DFLTO made complaint to the Local Government
Ombudsman.
4.28
The complaint was referred to DDC to conduct an investigation into the
concerns raised and, in accordance with the Council’s complaints process,
the CEHO provided a full response to the DFLTO in her letter of 9th July.
4.29
The DFLTO responded to this in their letter of 13th July to which the CEHO
further replied in her letter of 15th July.
4.30
The DFLTO did not accept the explanations provided by the CEHO and the
matter was referred to me for investigation.
4.31
I met the officers’ of the DFLTO at the offices of Dover District Council on the
11th August and again at a private venue in Dover on 10th September.
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4.32
On the 16th September I chaired a meeting between the officers of the
DFLTO, who were accompanied by the Chairman of the National Federation
of Hackney Carriage drivers, and the CEHO and her senior licensing staff.
4.33
The minutes of this meeting are contained in appendix 2.
4.34
At the conclusion of this meeting it was agreed that I would investigate three
additional matters and these are considered in section 6 of this report.
5.
The investigation.
NB.
The council’s complaints procedure is concerned with investigating
complaints of maladministration with injustice. As a general rule, I will not investigate
complaints the circumstances of which occurred more than 12 months before the
complaint was made or 12 months before the complainant(s) knew they had grounds
to complain. Neither will I investigate complaints against the merits of decisions
properly made by those empowered to make them – usually referred to as ‘the merits
of the decision.’ In these regards the Council’s complaints procedure mirrors that of
the Local Government Ombudsman.
That said there are evidential issues which stretch back in time that have to be
considered as part of the investigation. I am satisfied that none of the complaints
raised by the DFLTO are time barred and accordingly have investigated all those
raised.
Ms Polgati, on behalf of DFLTO, has provided a number of files containing a huge
amount of meticulously highlighted and cross-referenced information. I am grateful
to her for her efforts and have carefully examined the documents provided.
However, I should make the point that it is not possible for me to respond to each
and every issue raised in these documents.
With the prior agreement of the officers’ of the DFLTO, reached at our meetings on
the 11th August, 10th and 16th September, the investigation is limited to the complaints
identified in paragraph 2.10 and to the additional issues identified in paragraph 2.11.
During the course of this investigation I have interviewed the Officers’ of the DFLTO
and had discussions with the National Chairman of their Association. I have also
interviewed the Chief Environmental Health Officer, the Environmental Health
Manager, the Senior Licensing Officer, the Head of Legal Services and the Senior
Assistant Solicitor.
I have read a number of documents including Counsel’s advice dated 5th December
2002 commissioned by the Head of Legal Services and legal advice dated 31st
August 2004 commissioned by myself to assist the investigation. I have referred to
various sections of Buttons ‘Taxis – Licensing Law and Practice’.
For ease of reference and to avoid repetition, the various grounds forming the scope
of the investigation are reproduced in bold followed by details of the investigation in
standard typeface.
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Complaint 1: That the Council failed to properly enforce the
conditions, rules and requirements governing the issue of, and
use of, rural hackney carriage licences.
5.1.1
I have carefully considered the DFLTO’s allegations that the rural taxi system
is being ‘blatantly abused’ by drivers who have no real intention of serving the
rural areas.
5.1.2
It is evident from the correspondence and from conversations that there is a
widespread belief within the DFLTO that some rural hackney carriage drivers
are plying for hire outside the rural area and that the existence of rural plated
vehicles causes confusion to the public.
5.1.3
In September 2003 the sub-committee suspended a rural hackney carriage
plate holder for two weeks for plying for hire in Dover.
5.1.4
Apart from this incident there is no evidence that rural hackney plates have
been used, or are being used by drivers in contravention of the legislation,
albeit there is clearly an opportunity for them to do so.
5.1.5
The Senior Licensing Officer (SLO) confirmed that as part of his enforcement
duties he pays attention to such matters and had not personally witnessed
improper usage. He stated that had he received evidence of improper use
from the Trade or any other person or body or witnessed improper use he
would have taken appropriate enforcement action.
5.1.6
During the course of the meeting on 16th September (minutes attached at
appendix 2) it was acknowledged by the DFLTO that the Trade has a
responsibility to report instances of improper use to the Council and the
officers’ acknowledged the Council’s obligation to act on any such information
received.
5.1.7
The DFLTO further allege that the Council has failed to abide by the 1994
guidelines (see paragraph 4.1).
5.1.8
However, Counsel’s advice identifies that these guidelines are unsafe and, in
the absence of an unmet need survey, rural plates should be issued to
applicants for rural plates subject to their satisfying driver suitability and
vehicle safety requirements.
5.1.9
I am of the opinion that the restriction on the issue of such licenses, or
revocation of rural licenses already issued, sought by the DFLTO to remove
or reduce perceived abuses is not one the Council can properly exercise.
5.1.10 As Counsel stated:
“….the 1976 Act operates on the basis that hackney carriages can
provide private hire services (see section 67 of the 1976 Act). It is,
therefore, perfectly lawful for a vehicle to obtain a hackney carriage
licence, permitting it to ply for hire, and at the same time to undertake
private hire work. It is difficult to see that a hackney carriage licence
could lawfully be refused because of concerns that the proprietor or
driver may do something that is legal and expressly contemplated by
the 1976 Act.”
27
5.1.11 I am satisfied there is no evidence the Council has failed to enforce the
proper use of rural hackney carriage licenses and that its current policy in
respect of the issue of such licenses is in accordance with authoritative legal
advice. As such there is no evidence of maladministration in respect of this
complaint.
Complaint 2: That the Council improperly delayed the unmet
demand survey required by the sub-committee at their meeting
on the 17th March 2003.
5.2.1
An examination of Cabinet, Scrutiny, Regulation and Licensing Committee
minutes and the CEHO’s reports subsequent to the sub-committees
resolution on 17th March 2003 clearly identifies the reasons for the delay.
5.2.2
In particular on the 14th April 2003 Cabinet accepted the CEHO’s proposal to
prepare a report for the Regulation and Licensing Committee outlining options
for the future development of the Hackney Carriage services within the
District.
5.2.3
I note the Trade was provided with this reason for the delay at the time.
5.2.4
Subsequently some confusion seems to have arisen as to the true costs of
the proposed survey and as to whether the financial implications for the
Council were the real reason for the delay. I am satisfied this was not the
case.
5.2.5
The CEHO apologised for any misunderstanding to the officers’ of the DFLTO
at the meeting on the 16th September 2004.
5.2.6
I am satisfied the reasons provided for the delay to the Trade at the time were
correct.
5.2.7
It is my view that in the circumstances of the time and in the light of Counsel’s
advice it was entirely appropriate for the Council to implement a review of the
type in question.
5.2.8
The initial decision to delay the survey was made by Cabinet and it is my view
that any challenge to this decision amounts to a challenge to the merits of the
decision and as such lies outside my remit.
5.2.9
The Butterfield legal advice confirms that it was entirely appropriate to
suspend the unmet need survey whilst consideration was being given to
delimitation.
5.2.10 At a meeting on the 2nd March 2004 the Regulation and Licensing Committee
determined not to proceed with delimitation and resolved that a demand
survey of the whole district be undertaken.
5.2.11 There is a difference in opinion between Mr Butterfield and the Environmental
Health Manager (EHM) as to the need and desirability of conducting an
unmet need survey after the issue of delimitation had been resolved but
before the issue of de-zoning was decided.
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5.2.12 The EHM’s views are contained in his answer to the Scrutiny (Management)
Committee during the course of their meeting on 21st June 2004 where he
stated that were a survey of unmet demand to be undertaken prior to any dezoning, the results of the survey would be affected.
5.2.13 I am satisfied this is a merits of the decision issue and the decision made by
the EHM to await the outcome of de-zoning prior to going out to tender was
one he was entitled to make.
5.2.14 In the event invitations to tender were sent out on the 13th August. It is
anticipated that Cabinet will consider the tenders and make their decision at
their meeting on the 8th November.
5.2.15 There is no evidence of maladministration in respect of this complaint.
Complaint 3: That officers’ provided incorrect, biased and
misleading information to Members, the public and the trade
regarding delimitation and de-zoning so adversely and
improperly impacting on the processes of consultation and
decision making.
5.3.1
The minutes of the Scrutiny (Management) Committee dated 21st June 2004
show that these allegations were fully addressed and that various
representatives of the trade were given the opportunity to voice their concerns
to Members of this committee.
5.3.2
The Scrutiny Management Committee resolved:
(a)
(b)
That this Committee accepts that the consultation process
regarding taxi de-zoning was properly conducted and
adequate.
The Committee has some reservations about phasing of
certain questions in the questionnaire (issued in December
2003) which may have suggested a pre-decided answer and
the need for clarity in the analysis and presentation of the
consultation results, however, these reservations are not of
sufficient weight to devalue the consultation outcome but
should be borne in mind for future consultation.
5.3.3
I have carefully read the consultation documents, the results and the analysis
of the results and fully agree with the findings of the Scrutiny (Management)
Committee.
5.3.4
It is my view (and that of the Committees) that the decision to de-zone would
have been made even had the wording of certain questions been less
suggestive.
5.3.5
I therefore find no evidence of any injustice.
5.3.6
It has also been suggested that Officers’ were working to a pre-determined
agenda and that for reasons to do with reducing workloads and simplifying
their own processes, attempted to pre-determine the outcome by use of
biased and unbalanced questions.
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5.3.7
The chronology of events, meetings, consultations, reports and decisions
following Counsel’s advice in December 2002 is open, transparent and
appropriate to current and evolving circumstances and requirements.
5.3.8
The Trade was given every opportunity at all stages to make their views
known and the evidence of minutes and other documents demonstrates that
they have been a very effective lobbying group and that their views have
been known to, and considered by, the decision makers.
5.3.9
The Trade was successful in persuading Members not to delimit despite
officer recommendation to do so. The fact that the Trade is unhappy with the
decision to de-zone does not make the decision wrong.
5.3.10 I am satisfied the processes were right and that Members possessed all the
required information from which to make their decision.
5.3.11 It is of course entirely acceptable for Officers’ to seek new and more efficient
ways of working. However, it would not be acceptable if in pursuing this
legitimate objective they attempted to skew the debate by a deliberate and
determined process of misinformation and misdirection.
5.3.12 I have found no such evidence and am satisfied that whilst some of the
questions may have been a little suggestive this was not part of any
deliberate effort to pre-determine the outcome.
5.3.13 It follows therefore, that as regards this part of the complaint, I find no
evidence of maladministration.
Complaint 4: That the Councils decision to de-zone is contrary to
the interests of the public and the trade.
5.4.1
Button summarises the key dilemma for the Council as follows:
“The ‘public’ is not a homogenous mass, but is comprised of many
individuals with different needs, abilities and, in some cases,
disabilities. It is important that the service provided by hackney
carriages and private hire vehicles is able to cope with this variety.
The rationale behind a licensing regime covering this important part of
the public transport of the country is the provision of a service to the
public that is accessible and safe, and seen to be so. Public safety is
paramount in the licensing regimes that govern these vehicles, their
drivers and operators, whether it is to prevent direct danger to the
passenger from the driver of the vehicle or a lightly less direct danger
to the passenger and other members of society from the vehicle itself
or the way in which the vehicle is driven. In addition, it must not be
overlooked that the hackney carriage and private hire trades employ a
great many people, who also have a right to expect a fair and
reasonable licensing regime to govern their activities.”5
5.4.2
5
Button goes on to say:
Button, Taxis – Licensing Law and Practice, 2004, Page 1.
30
“It is these bodies who have the complex and, at times, extremely
difficult task of reconciling the needs and expectations of the public
with the needs and expectations of those involved in the two trades.”6
5.4.3
It is therefore against these twin, and sometimes competing requirements,
that the Council’s actions need to be considered.
5.4.4
The existence of three zones in Dover is a consequence of history stemming
from local government reorganisation under the terms of the Local
Government Act 1972.
5.4.5
It is open to any authority where hackney zoning exists to either remove all
zones or accept the situation as it is.
5.4.6
In short it is evident from the consultation process that the public were, in the
main, in favour of de-zoning and the Trade were, in the main, opposed to it.
5.4.7
As with any dispute of this nature, there are strong arguments on both sides.
5.4.8
That said, I am satisfied the Council engaged in proper and appropriate
consultation with both the public and the trade, properly considered the
arguments in favour and against de-zoning and reached a decision it was
entitled to reach.
5.4.9
I am also satisfied the Trades reservations regarding de-zoning and its
potentially adverse impact on both the public and the Trade were properly
identified and summarised in the CEHO’s report and accompanying
documents to the Scrutiny (Management) Committee on 21st June and to the
Cabinet on 19th July.
5.4.10 It has been alleged that Officers’ failed to make clear to the decision makers
that once the Secretary of State has approved the Council’s resolution, the
decision to de-zone becomes irreversible.
5.4.11 This is not the case. The CEHO’s report makes clear that the Council has no
legal power to amalgamate or create new zones. It follows from this
statement, that if the Secretary of State approves the resolution to de-zone,
the Council cannot at some later stage change its mind, and return to zoned
areas.
5.4.12 I accept a clearer statement of irreversibility could have been made. That
said, the Officers’ of the DFLTO confirmed to me that they had made this
situation clear to the decision makers as part of their lobbying process.
5.4.13 Whether the decision to de-zone will prove to be of benefit to the public and
the trade only time will tell.
5.4.14 That said, I am satisfied the processes and procedures leading to the
decision were open, transparent, in accordance with the legislation and that
the decision was properly taken by the body charged with the authority to
make the decision.
5.4.15 Any challenge is therefore a challenge to the merits of the decision and lies
outside my remit.
6
Ibid, P2.
31
5.4.16 Under current legislation the Secretary of State is required to approve the
resolution and it is my understanding the Council intends submitting their
resolution to de-zone in November 2004.
6.
Outstanding Issues.
6.1
During the course of the meeting on the 16th September it was agreed I would
examine three additional issues.
Issue 1:
To clarify an apparent ambiguity which enables the
owners/drivers of rural hackney carriages to use their vehicles
for private hire in more favourable circumstances than is
available to hackney carriages operating in the Dover and Deal
zones.
6.1.1
In Hawkins v Edwards7 it was decided in a case that has survived the test of
time that a hackney carriage is always a hackney carriage once it has been
licensed.
6.1.2
To operate as a hackney carriage the vehicle must be licensed as a hackney
carriage and the driver must be licensed as a hackney carriage driver.
6.1.3
To operate as a private hire vehicle (PHV) the vehicle must be licensed as a
PHV, the driver must be licensed as a PHV driver and the operator must be
licensed as a PHV operator.
6.1.4
A hackney carriage can be used as a PHV, but a PHV cannot be used as a
hackney carriage.
6.1.5
Button identifies that a hackney carriage can be used as a PHV in one of two
ways:
“First, the hackney carriage can be used effectively as a private hire
vehicle because a booking is made with a person, either by telephone
or in person, and a vehicle, which is a hackney carriage, is dispatched
to fulfil that booking. Secondly, a private hire operator can operate a
vehicle as a PHV, but the vehicle is licensed as a hackney cab.”8
6.1.6
The question therefore is not whether a hackney carriage can be used as a
PHV, as clearly it can, but whether in an area that is zoned, it can operate as
a PHV throughout the entire licensing district or only in the zone for which it is
licensed as a hackney carriage.
6.1.7
The three zones in DDC are Dover, Deal and the rural zone.
6.1.8
These zones only apply to hackney carriages being used as hackney
carriages.
7
8
(1901) 2 KB 169.
Button, 2004, para 13.60, P 441
32
6.1.9
They have no relevance to PHV’s and as such they can have no relevance to
hackney carriages being operated as PHV’s.
6.1.10 It therefore follows that hackney carriages, regardless of their zone, can
operate anywhere in the district providing they are operated by the holder of a
PHV licence (which could include the holder of a hackney carriage licence)
who has been licensed by the same authority.
6.1.11 Counsel makes this very point in the final paragraph of his advice to the
Council by stating that it is perfectly lawful for the holder of a rural hackney
carriage licence to engage in private hire work in other parts of the district as
well as plying for hire in the rural area.
6.1.12 Put simply, providing all three licences (hackney carriage, hackney driver and
PHV operator) have been issued by the same licensing authority, there is no
restriction on the geographical area in which the journey can take place.
6.1.13 Subject only to this requirement there appears to be no restriction on a
hackney carriage being operated as a PHV by any number of PHV operators.
6.1.14 This matter was raised by the secretary of DFLTO during the course of the
meeting on 16th September and in a subsequent e-mail addressed to the
Senior Assistant Solicitor dated 11th October.
6.1.15 The secretary of DFLTO stated that rural hackney carriages were allowed to
operate as PHV’s throughout the district, but that Dover and Deal hackney
carriages could only operate as PHV’s in their own zone.
6.1.16 This is a clear misunderstanding.
6.1.17 The Environmental Health Manager confirmed during the course of a meeting
on 20th October that there was no record of the secretary or any other
hackney carriage driver being refused permission to operate as a PHV
throughout the district. He stated he was unaware that this issue had
previously been raised.
6.1.18 The Senior Licensing Officer confirmed this.
6.1.19 Whatever the cause of this misunderstanding, the above analysis shows
there is no ambiguity as regardless of the requirements of zoning on a
hackney carriage, a hackney carriage operating as a PHV can operate
throughout the entire district.
Issue 2:
To determine whether the DFLTO might be
provided with the opportunity to be represented at meetings of
the Regulation and Licensing Committee with the right to
address the Committee.
6.2.1
Meetings of the Regulation and Licensing Committee are open to the public
and members of the Trade.
6.2.2
However, there is no automatic right to address the Committee, albeit the
chairman of the Committee might agree to allow a question if prior notification
is received.
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6.2.3
The DFLTO request that they be provided with the right to attend and address
meetings of the Committee.
6.2.4
This is a constitutional matter and has been referred to the Monitoring Officer
for him to progress with the Regulation and Licensing Committee.
6.2.5
It is anticipated this matter will be put on the Committee’s agenda in time for
consideration at their November meeting, at which point a decision will be
made and will be communicated to the secretary of the DFLTO.
Issue 3:
To consider whether, in certain clearly defined
circumstances, officers might be provided with delegated power
to plate a vehicle over three years old for a temporary period.
6.3.1
The CEHO will prepare a report for consideration by the Regulation and
Licensing Committee in time for their meeting in November.
6.3.2
The decision on this will be communicated to the secretary of the DFLTO.
7.
Conclusions.
7.1
There is no evidence of maladministration with injustice in respect of any of
the complaints considered in this report or discussed and resolved at the
meeting on 16th September 2004.
7.2
The law and practice in respect of hackney carriages and private hire vehicles
is complex and it is understandable that difficulties, doubts, concerns and
anxieties arise from time to time.
7.3
I am satisfied there is no evidence that Officers’ have sought to be difficult in
their dealings with the Trade.
7.4
I am also satisfied that the Officers’ of the DFLTO have had genuine concerns
and have expressed these in a professional, reasonable, timely and
constructive manner.
7.5
It is my opinion that there have been some breakdowns in communication,
that letters and requests for information have not always been answered as
quickly as they should have been and that avoidable misunderstandings have
occurred which have brought with them the risk of unhelpful friction and
frustration.
7.6
To a large extent these difficulties are historic and with the recent creation of
the Taxi forum there should be increased opportunities to ensure that
concerns are dealt with more quickly and that misunderstandings will be
avoided.
7.7
The complexities inherent in the somewhat dated legislation and the mass of
case law are such that letter writing is seldom likely to be the best medium for
effective communication and I am pleased that the opportunity for face-toface meetings and beneficial dialogue is now provided by the existence of the
taxi forum.
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8.
Recommendation.
8.1
That the taxi forum be developed to the fullest extent possible to ensure that
the working relationship between the licensing authority and the Trade is
developed in a way that will provide maximum benefit for the transport needs
of the public whilst meeting the legitimate expectations of the Trade.
C.J. Grieve
Professional Standards Investigator and Accredited Mediator
October 2004.
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