mancityfan wrote:
This is a conversion, from pdf, so there may be errors,not had time to check.
Local Government
OMBUDSMAN
Statement of Reasons
Complaint ref: 10 019 007
Council: West Somerset District Council
Date: 27 May 2011
Complaint
1. The complainant, Mr X, says that the Council did not properly deal with the licensing of his
private hire vehicle, and in particular that it delayed informing him that his vehicle did not comply with the Council's regulations.
Investigation
2. As part of the investigation, I have:
• considered the complaint and the aocuments provided by me complainant;
• discussed the issues with the complainant;
• made enquiries of the Council and considered the comments and documents the Council
has provided.
The role of the Ombudsman and the relevant law
3. The Ombudsman's role is to considercomplaints of service failure and maladministration
causing injustice. The Ombudsman must consider whether the Council has acted reasonably in accordance with the law, its own policies and generally accepted standards of local
administration. Where a council has acted with maladministration, the Ombudsman considers whether injustice has arisen, and any appropriate remedy for that injustice.
4. The Local Government Act 1974 says that the Ombudiman may not investigate a complaint if
complainants have or had the right to take legal proceedings. In such cases, the Ombudsman
can only investigate where he considers it unreasonable to expect the complainant to use that
right.
Key facts
5. As I understand it, Mr X has been running a private hire taxi business for 12 years and prior to
February 2010, was operating two private hire vehicles, one seating four passengers and one
seating seven passengers. In December 2009, the vehicle seating seven passengers was
destroyed in an arson attack. Mr X purchased a similar replacement vehicle and took it to the
Council's nominated garage to be inspected. The Council then issued a vehicle licence and plate.
6. Around six weeks later, in January 2010, the Council contacted Mr X and asked him to bring
the replacement vehicle in to be inspected by the Licensing Oficer. It says that it had been
informed via an anonymous phone call that the vehicle did not comply with the Council's
private hire regulations. Mr X took the vehicle in to be inspected and the Council confirmed
that it did not comply. The regulation in question states:
• A vehicle used as a hackney carriage/private hire vehicle shall be constructed and
maintained so as to be safe and comfortable; the doors must open sufficiently wide so as to allow easy access to and egress from the vehicle and cause no inconvenience to
passengers. Access to and egress from the vehicle must at all times be available in
respect of each seat without the need to move or adjust any seating.
7. The regulations for vehicle speciication were approved in 2005 with minor amendments in
2008. Mr X says that he was not aware of the regulation and had provided all the vehicle's
details over the phone to the Licensing Officer at the time of the purchase and she did not
mention any requirement to also inspect the vehicle herself.
8. Mr X applied to the Council for an exemption from the requirement to comply with this
regulation and the matter was brought before the Licensing Committee in. February 2010. The Committee determined that an exemption should not be granted but that if Mr X removed one seat from the middle row of seats, the vehicle would then comply with the regulations. Mr X was informed that he could appeal the decision in the Magistrates Court within 21 days.
9. The Comirilif4e wasinformed that a review of he rtWilatlo—n-rarid pitidediireS relating to
hackney carriage/private hire was last undertaken ive years previdusly. The Committee
resolved that a full review of the regulations and procedures be approved.
10. Mr X says that the Council's decision was unfair and that as a result of removing one of the
seats he has lost trade to the value of around £5000. He says that by the time the Council
informed him that the vehicle did not comply with the regulations, it was too late to take the
vehicle back to the dealer.
11. In March 2010, another vehicle went before the Licensing Committee due to non compliance
with the same regulation. The Committee determined that the exemption could be granted if a
seat were removed from the vehicle. The Council then received legal advice that this could be
taken as making the exemption conditional, which the Committee did not have the power to do.
The matter was then taken before the Committee again in May 2010 and the vehicle was
granted exemption from the requirement to comply with the regulation.
12. Mr X then wrote to the Council asking if the same legal issue applied to the decision relating to
his vehicle's compliance with the regulations. He was told that it did not. Mr X complains that
he was required to remove a seat from his six door vehicle that carried seven passengers,
whereas the other vehicle in question only had four doors and carried six passengers but was
not required to remove a seat, even though that was the Licensing Committee's initial decision.
13. The National Private Hire Association wrote to the Council explaining that it had acted on
behalf of several other taxi drivers in the same situation and had been successful in eight of the nine cases. The case that was unsuccessful was lost prior to the publishing of the Department for Transport's Taxi and Private Hire Vehicle Licensing Guidance in March 2010. This
guidance states that it may be too restrictive to automatically rule out considering Multi-
Purpose Vehicles, or to license them for fewer passengers than their seating capacity.'
14. In a speech for the National Taxi Association Conference on 27 October 2010, Norman Baker,
Minister for Local and Regional Transport said, 'And, in this regard, you might be interested to
know that I also expressed my concern to licensing authorities about local policies which
require taxi owners with seven or eight seater vehicles to remove one or two of the seats.
There is no real justification for this - all it does is to restrict your ability to provide the sort of
service which you have identified and which you want to provide.'
15. The Council has explained that Mr X was informed verbally several times and in writing of his
right to challenge the Council's decision in court but chose not to do so.
Analysis
16. As explained in paragraph four, the Ombudsman should not consider a complaint where a right
of appeal to a court of law exists, unless it is unreasonable to expect the complainant to use
that right. The complainant was aware of his right of appeal and whilst he was concerned
about the costs involved in taking legal action, I do not consider that it was unreasonable for Mr
X to appeal the matter in the Magistrates Court. I therefore do not intend to consider the
process leading to the Committee's decision.
17. However, I will point out that the Department for Transport's guidance had not been published
at the time Mr X was able to appeal so it should not be assumed that an appeal would have
been successful on this basis. The comments of the Minister for Local and Regional
Transport were made several months later.
18.1 have considered he .Council's actions when Mr X purchased the vehicle. In the Council's
response to the comiiiiihOt says that if-Mr kh—RI asked laiether he ccurdsofelytake the
vehicle to the inspecting garage he would have been informed that it still needed to be taken to the Council ofices for inspection by the Licensing Officer. Once the pass certificate was
issued by the garage, the Council was aware that Mr X had taken the vehicle to the garage before taking it to the Council's offices and, in my view, it should have informed him at this time of the need to inspect the vehicle.
19. Regulation 3.47 of the Private Hire Regulations states 'any vehicle which is the subject of an
application for a licence will be examined (including mechanically) by a duly authorised officer
of the council prior to the issue or renewal of a vehicle licence...'. It seems to me that the
Council has a responsibility to inspect the vehicle before it issues a licence. I do not accept
that the Council was entitled to assume the vehicle was compliant and it is my view that the
Council should have followed its own regulation and not issued a licence before it had
inspected the vehicle. This is maladministration.
20. If the Council had inspected the vehicle before issuing the licence as it should have done, Mr X
would have been advised at the time of the inspection that the vehicle did not comply. He
would then have had the option to take the vehicle back to the dealer and substitute it for one
that did comply with the regulations. That said, once Mr X was informed that an exemption
would not be granted, he could have replaced the vehicle at that time. In line with my
recommendation, the Council has agreed to make a payment to Mr X of £300 to recognise the
time and trouble he has been put to as a consequence of the Council issuing the licence before
the vehicle was inspected.
21. The Council says it is reviewing its regulations and procedures to ensure that they relect
current legislation and guidance. In light of the Department for Transport's guidance and the comments of the Minister for Local and Regional Transport and following my recommendation, the Council has agreed to consider a fresh application from Mr X for exemption from the
requirement to comply with the regulation in question, and if unsuccessful, provide him with a fresh right of appeal.
Final view
22. My decision is that Mr X has suffered injustice as a result of maladministration by the Council,
but that the Council's agreement to take the action included in paragraphs 20 and 21 is a fair
and reasonable basis for settlement of the complaint. I do not believe there are grounds to
pursue the complaint fUrther.
Jackie Foster
Investigator
On behalf of the Local Government Ombudsman
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