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REPORT TO:
REPORT No:
DATE:
REPORTING OFFICER:
CONTACT OFFICER:
SUBJECT:
WARD:
LICENSING COMMITTEE
26 November 2009
Head of Licensing
Jill Newell – 225 3477
Re-consideration of Application for New
E7 as Hackney Carriage
City Wide
Purpose of Report
To re-consider the application from Allied Vehicles Ltd for approval of the
New E7 for use as a hackney carriage in Liverpool following the outcome
of the successful judicial review brought against the Committee’s decision
in March 2008 when it refused the application.
Recommendation
That the New E7, designed and manufactured by Peugeot and Cab
Direct, be approved for use as a hackney carriage in Liverpool.
Report
1. The Committee will recall that at its meeting on 28 March 2008 it
was resolved that an application from Allied Vehicles Ltd for the
Peugeot E7 to be licensed as a hackney carriage in Liverpool was
refused.
2. Subsequently, Allied Vehicles Ltd together with a wheelchair user,
Alma Lunt, applied for a judicial review of the decision. The review
was heard over the course of four days between July 28 – 31st
before His Honour Mr. Justice Blake sitting in the Administrative
Court in London commencing. The claimants sought:
The City of Liverpool Agenda Item No.
Page 2 Agenda Item 3
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• An order that the Committee’s decision of 28 March 2008 be
quashed
• An order that the Committee reconsiders whether to approve
the E7
• Damages for breaching Article 28 of the EC Treaty (which
prohibits unjustified quantitative restrictions on the free
movement of goods) on the basis that the Council’s turning
circle requirement effectively prevents the importation of E7
vehicles into the UK which would otherwise be sold in
Liverpool.
3. In summary, the claimants contended that the Committee’s
decision was unlawful for the following reasons:
• It discriminated against disabled people because it made it
impossible or unreasonably difficult for them to receive the
benefit that other Liverpool residents enjoyed, specifically
travelling safely in existing taxis, in a forward-facing position
with more than one companion
• The Council had failed to discharge its statutory duty to have
due regard to the need to promote equality of opportunity for
disabled people and to encourage participation by disabled
persons in public life
• The decision-making process was flawed and unfair because (i)
the views expressed by disabled groups in consultation were
not fairly and accurately presented to the Committee (ii) there
was no consultation with other local authorities who had
licensed the E7 (iii) the public were unlawfully excluded from
the Committee’s deliberations
• There was insufficient inquiry, and no evidence for, the
Committee’s conclusions regarding the safety and alleged
disadvantages of the E7.
4. Judgment was given against the Council at the conclusion of the
hearing on 31 July 2009. The Court quashed the Committee’s
decision of 28 March 2008 and ordered that the application be
remitted back to the Committee for re-determination on its merits
in accordance with the law set out in the Court’s judgment. The
City Council was ordered to pay the Claimants’ legal costs.
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5. The approved transcript of the Court’s judgment was published on
29 September 2009 and accompanies this report at Appendix A.
6. Counsel has advised that there are little realistic prospects of
successfully appealing the decision primarily because the Court of
Appeal would be unlikely to interfere with the fact based
assessments made by Mr. Justice Blake having heard all the
evidence. The Head of Licensing and City Solicitor have therefore
decided not to pursue any appeal.
Key Issues Arising from Administrative Court Judgment
7. The Court quashed the Committee’s decision to refuse approval
for use of the E7 as a hackney carriage in Liverpool because the
Court found the decision had been based on an “erroneous belief”
which amounted to an “error of fundamental fact” which infected
the whole of the Committee’s decision, namely:
(a) that Liverpool’s existing fleet of hackney carriages are
accessible to all wheelchair users ;
(b) that problems as to the safe position and strapping of
wheelchairs were the result of driver error rather than the
result of constrictions of space;
(c) the Committee thought it was dealing with a wish by
wheelchair users for greater choice rather than something
that restricted their ability to access the benefits provided
at all.
8. The Court has directed that the Committee reconsider the
application taking into account the conclusions on the disputed
legal issues that should inform that reconsideration. These can be
read in full from paragraph 52 of the judgment onwards. A
summary of the key issues follows:
Section 21 Disability Discrimination Act
In order to avoid discriminating against a disabled person the City
Council, as a public authority, should take the following approach
(paragraph 53):
1. Does the Council have a practice policy or procedure?
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2. Does that practice policy or procedure make it impossible or
unreasonably difficult for disabled persons to receive any benefit
that is, or may be, conferred by the Council?
3. If so, is it under a duty to take such steps as is reasonable in all
the circumstances of the case for it to change that practice policy
and procedure so it no longer has that effect?
4. Has the Council failed to comply with its duty to take such
steps?
5. If so, is the effect of that failure such as to make it unreasonably
difficult for Mrs Lunt to access such benefit?
6. If so, can the Council show that its failure to comply is justified
in that either-
(a) it reasonably holds an opinion that the non-compliance is
necessary in order not to endanger the health or safety of any
other person; or
(b) its failure is justified as a proportionate means of achieving
another legitimate aim?
The Court went on to find (paragraph 60) that:
“it is misdirection for the Council to consider that because some
wheelchair users can access the London taxi in dignity and safety
that there is accessibility to wheelchair users as a class, and that
any problem that Mrs Lunt has must be regarded as entirely
individual to her. I accept that there must be a class of
persons rather than mere problems encountered by a single
individual, but the written and oral evidence presented to the
Committee and its officers upon its true construction, as in
the witness statements on behalf of the claimants in this case,
showed serious difficulties for a class of wheelchair users that was
wider in extent than Mrs Lunt personally, and that of that class
there are some, like Mrs Lunt, who could not access the safe and
secure position at all. As already indicated, that evidence has
increased with the post-decision material now available for
consideration”.
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Section 49A Disability Discrimination Act – Disability Equality
Duty
Section 49A(1) of the DDA 1995 provides as follows:
“Every public authority shall in carrying out its functions have due
regard to –
(a) the need to eliminate discrimination that is unlawful under this
Act;
(b) the need to eliminate harassment of disabled persons that is
related to their disabilities;
(c) the need to promote equality of opportunity between disabled
persons and other persons;
(d) the need to take steps to take account of disabled persons’
disabilities, even where that involves treating disabled persons
more favourably than other persons;
(e) the need to promote positive attitudes towards disabled
persons; and
(f) the need to encourage participation by disabled persons in
public life."
The Court stated (paragraph 64) that the duty is to have regard
rather than merely to achieve the improvement of the equality
considerations at stake, but it is to have due regard, which must
mean proper regard and full weight to the issue must be given.
Article 28 EC Treaty
The Court found, having considered the relevant European case
law and in particular two recent judgements given in February and
June 2009, that (paragraph 71) that the Council’s turning circle
requirement for hackney carriages in Liverpool results in the
prevention or greatly restricted use in Liverpool of the Tepee
Expert chassis base for the very purpose for which it is imported
by Allied Vehicles Ltd, namely as a public hire taxi.
This means that the turning circle requirement is in breach of
Article 28 unless the Council can justify the maintenance of the
turning circle, or indeed any other requirement that it considers
relevant (e.g. sliding doors) purely on the grounds of public safety.
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Moreover, any such justification must be proportionate and no
more intrusive than is needed to give effect to the public safety
consideration.
The Court found (paragraph 81) that the material relied upon by
the Committee when it refused the application, concerning the
perceived safety issues, was in fact insufficient to discharge the
duty of justification because:
i. It was unclear what expertise the Merseyside
Police Force Examiner, Mr. Gore, had to speak
specifically about the safety implications of turning
circles and sliding doors.
ii. There is a distinction between convenience and
lack of familiarity with a sliding door and real
concerns of safety. The Court did not see how
descent from a commercial vehicle designed to
carry people which has a sliding door can be said
to represent a safety issue given the scale of the
use of such vehicles in London and elsewhere as
private hire vehicles precisely for that purpose.
iii. The fact that the E7 is used as a public hire taxi
extensively in the UK without reported incident is
a compelling source of relevant evidence.
iv. The Committee’s local knowledge should not be
equated with expertise in a specialist area of
assessment.
v. What should weigh in the balance on any
discussion of justification on safety grounds is the
clear safety benefits for secure travel for all
wheelchair users, irrespective of the dimensions
of their chairs, that can be apparently
accommodated in the E7. It is common ground
that travelling unsecured sideways in a cab is
unacceptable. The introduction of the E7
alongside but not in replacement of the TX is
likely to make a substantial contribution to
eliminating such practices.
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Head of Licensing’s Conclusions
1. The Committee must now re-consider the application for the New E7
afresh in accordance with the contents of Mr. Justice Blake’s
judgment.
2. The judgment makes it clear that the Committee approached the
original consideration of the application on the basis of erroneous
facts (see paragraph 7 above). The Committee in re-considering this
application must recognise these errors.
3. When considering the Section 21 duty referred to above, the
Committee must also recognise that in fact the correct position -
following officer’s inspection of the current TX vehicle type, the
evidence that was considered by the Court and the Court’s findings -
is that the Council’s retention of the turning circle requirement in its
policy makes it unreasonably difficult for a class of larger wheelchair
users to access Liverpool’s hackney carriage fleet.
4. That being the case, it therefore follows that the Council is under a
duty to take such steps as is reasonable in all the circumstances of
the case for it to change that policy so it no longer has that effect
unless the failure to do so can be justified because it is necessary in
order not to endanger the health or safety of any other person, or the
failure can be justified as a proportionate means of achieving another
legitimate aim.
5. Given the Court’s conclusion that Article 28 has been breached, the
onus is also upon the Council to justify the maintenance of the turning
circle, or indeed any other requirement that it considers relevant (e.g.
sliding doors) purely on the grounds of public safety AND any such
justification must be proportionate and no more intrusive than is
needed to give effect to the public safety consideration.
6. Having given the matter much consideration, the Head of Licensing
does not consider that there are reasonable grounds to justify the
maintenance of the turning circle on grounds of public safety under
either Section 21 or Article 28. The Head of Licensing considers the
turning circle is desirable for many reasons related to the efficiency of
hackney carriages in Liverpool but, as these do not relate to public
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safety, they do not amount to lawful justification for maintaining the
turning circle.
7. With regard to the other concerns which the Committee originally had,
namely the height of the vehicle floor from the ground and the use of
sliding passenger doors, the Head of Licensing does not consider,
having due regard to the Disability Equality Duty and the absence of
any reported safety problems from those authorities where the E7 has
been licensed for taxicab use, that it would be proportionate to refuse
the application on these grounds.
8. The Head of Licensing, in consultation with the City Solicitor,
therefore recommends to the Committee, having considered the Court
judgment in detail, that none of the reasons the Committee originally
relied upon are justifiable to refuse the application for the New E7 for
use as a hackney carriage in Liverpool and that, following reconsideration
in accordance with the contents of Mr. Justice Blake’s
judgment, the application should be approved.
9. For Members information, the solicitors acting for Mrs. Lunt have
stated in correspondence that as the Court has found that the Council
has discriminated against Mrs. Lunt, a claim for damages may be
pursued by Mrs Lunt and others but that the remedy that is sought is
not compensation but the making of a reasonable adjustment in the
form of licensing the E7 for future use.
10. Copies of the original documentation which the Committee
considered at its previous meetings when it originally considered the
application, on 31 October 2007 and 28 March 2008, will be available
for Members to consider at the Committee meeting. Three additional
documents which the Administrative Court took into account are
appended to this report, namely:
Appendix B
“Taxi Evaluation – disabled people at Victoria Coach Station”
produced by Bob Crowther, the Surface Transport Market
Development Manager at Transport for London, 2003. Extracts
from the report are referred to in Mr. Justice Blake’s judgment
at paragraph 48.
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Appendix C
City of Edinburgh Council Review of Licensing Conditions for
Taxis, Private Hire Cars, Taxi Drivers and Private Hire Car
Drivers, March 2006 which examined whether the turning circle
requirement of the standard London Taxi gives rise to safety
considerations. Extracts from the report are referred to in Mr.
Justice Blake’s judgment at paragraph 51.
Appendix D
Emails in December 2008 from Sheffield City Council,
Edinburgh City Council, Sefton Council, Halton MBC, Wirral
MBC, Warrington Council, St. Helens Council stating that there
have been no complaints or accidents reported concerning the
use of sliding doors on E7s licensed by these Councils.
11. The Head of Licensing will present a separate report to the
Licensing Committee as soon as possible concerning the wider
implications of the Court’s findings concerning the Turning Circle
Requirement and Article 28.
Representations by LTI
1. The Committee will recall that it was scheduled to re-consider this
application at its meeting on 22 October 2009. However, reconsideration
of the application was deferred to enable legal
advice to be sought upon the contents of a letter dated 20 October
2009 from solicitors (Wragge & Co) acting for LTI Vehicles (the
manufacturers of the current TX type hackney carriage vehicles).
This is appended to the report at Appendix E.
2. Counsel has analysed the contents of the letter and provided his
advice concerning the points raised therein – see Appendix F.
3. In relation to criticism no.1, the Head of Licensing confirms that in
paragraph 6 of her above “Conclusions” she is not purporting to be
an expert on matters of safety, but rather explaining that having
considered all the information now available, she does not
consider there are grounds to justify the maintenance of the
turning circle.
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4. It is clear from Counsel’s advice that none of the criticisms raised
in Wragge & Co’s letter prevent the Committee from proceeding to
re-consider the application on its merits.
5. On 26 October 2009 Bindmans solicitors acting for Allied Vehicles
Ltd responded to Wragge & Co’s letter of 20 October 2009. Their
response is attached at Appendix G.
6. On 16 November 2009 a further submission was received from LTI
Vehicles which is attached at Appendix H.
Equalities Implications /Equality Impact Assessment
It is now clear that users of larger wheelchairs find it impossible or
unreasonably difficult to travel safely and securely in the existing fleet of
Liverpool hackney carriages. The approval of the New E7 will improve
the situation by making available a vehicle which, because of its
specification, is better able to convey users of larger wheelchairs.
Legal Implications
As stated in the main body of this report.
Financial Implications
The costs payable to the Claimants will be met from within the Council’s
corporate funds allocated to payment of legal fees following adverse
court judgments. The Council’s own legal fees will be met from the taxis
licensing budget.
Background Papers
All documents relating to the application considered by the Committee at
its meetings on 31 October 2007 and 28 March 2008.
_________________ C. Oakes The Hackney Association Ltd bbha@btinternet.com
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