Taxi Driver Online

I understand a local authority is about to advise its drivers that as soon as they get 6 penalty points on their driving licenses they will have the take a DSA driving test.

Is it a fetter?

with the local authority not permitting the driver a right of appeal or hearing, as soon as they get 6 pts they must take a DSA test.

regards

Captain cab

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Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

I'm not so sure, in the same way that a council could say that a driver with insulin dependant diabetes shouldn't be licensed.

That aside, I think the council concerned will more than likely use words like normally or usually in their conditions.

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IDFIMH

I see what you mean sussex, but the letter issued states this;

"should a driver attain 6 penalty points on thier driving license then another testwill have to be taken"



oh, and the same LA insist you have 5 years driving experience plus a DSA taxi test before you can become a licensed driver!

Captain cab

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

In respect of the letter, I would ask to see the minutes of meeting where this was passed, and exactly what was passed.

As for the latter, well I suggest someone sends them the 1847 and 1976 Acts, because it aint in them. If a driver has been driving for a year, then all thinks being equal, they should be granted a license.

Perhaps you can name and shame and TDO will ask them.

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IDFIMH

Im going to try and get the minutes of the council meeting, i want to check it out first, although what I just quoted is actually on the letter headed paper of the LA involved.

hehe

fun days indeed

Captain cab

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

Further to that, Tap in 2 Taxis list this case.

Carmarthen:- 1st October 2001

A 19 year old driver applied for a Hackney Carriage Drivers Licence earlier this year but because of her age the matter was referred to the Council's Licensing Committee. The Council had a condition of licence (a policy) that it would only licence drivers aged at least 21 and who have been driving for at least 2 years. The Council further conteneded that the age of the Appellant meant that they could not be satisfied that she was a "fit & proper person" to hold a licence. The Appellant argued that neither the Act of 1847 or 1976 required an applicant to be aged at least 21 and in fact the wording of the Acts made it clear that so long as an applicant had held a full drivers licence for at least 12 months then a licence should be issued, provided of course that she was otherwise fit and proper. The Appellant in this case was medically fit, conviction free and had held a full licence for 2 years and 7 months. The Appellant further argued that the condition of licence relied on by the council was unenforceable as there is no provision in the Act of 1847 or 1976 to attach conditions of Licence upon a Hackney Carriage Driver. Hackney Carriage Drivers must be regulated by way of "Bye-Laws" in accordance with s68 Town Police Clauses Act 1847. HELD: The Appeal was allowed and the Council was ordered to pay the Appellant's costs. Solicitor for the Appellant Keith Jeffreys, Kearns & Co Swansea - Solicitor for the Council Robert Edgecombe, Carmarthenshire County Council Legal Serices.

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IDFIMH

yeah, i knew about that one, I dont really want to go down that road though, see if gentle persuasion will work

Captain cab

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

Determining if the DSA test is a condition or not might appear complicated but in theory a good old judicial review will sort it out once and for all. I think the question you ask goes way beyond fettering discretion. There are other concerns which may apply such as, is the condition ultra vires, or reasonable? It would be wise to look at the resolution minutes and see if the condition only applies to the renewal of a license?

The case law appertaining to Kaye assumes the DSA resolution is legal, the judge made a point of mentioning that Mr Kaye had not challenged the reasonableness of the resolution by way of judicial review. He implied Mr Kaye could have gone down that road if he wished.

The Kaye Judgement was about a council satisfying itself if a person is fit and proper to hold a license. The Judge said they were in their rights to satisfy themselves that an applicant was a competent driver to the standard they required, in order to grant a license. The goalposts have been moved somewhat because what you have here is a council that might be applying the DSA test when the license has already been granted.

Darlington borough council said they introduced the condition in order to give them a broader approach when it came to suspending licenses.

In hindsight Mr. Kaye should have taken the council to judicial review and questioned the legality and reasonableness of the condition imposed by the council. This situation will never be resolved until such time it does go to judicial review.

There is no mention in either the 1847 or 1976 acts, which state an applicant has to pass an advanced driving test. It is the catch all, "fit and proper person" clause in both acts, that is allowing councils to impose such conditions.

In Kaye, the Judge differentiated between the condition in that case and the condition applied in the Wathan case. What the Judge basically said in Kaye was, "the condition was already in place" he was referring to the "fit and proper person condition" as defined in both acts.

The judge in his wisdom implied that, the "DSA test was to inform the council, if the fit and proper person condition in the relevant acts, could be met". In other words what he is saying is, "the DSA test is not a condition as such" but a request for information in order to satisfy a condition, the condition on the statute being that of "fit and proper person".

Intriguing isn't it? There is a different flavour to this resolution than the one introduced by Darlington. In most cases the license might have already been granted, so they are using the DSA test as a something other than a request for information. If the license has already been granted? Then it may follow that the mandatory imposition of the DSA during the twelve-month or two-year period when the license is in force is indeed a condition.

Subject to appeal, the council have the right to impose certain penalties on a license holder during the period the license is in force. It might then follow that the DSA test in these circumstances could amount to a penalty and therefore it should be subject to the appeal process governing penalties.

The only way to test this condition is by way of judicial review but who's going to do that?

Best wishes

JD

many thanks for your input JD.

I have questioned the penalty points system devised by some local authorities for a while. It seems to suit drivers in some areas, whereas others are opposed.

I tend to be against them, yet some in my own TOA want to know where they stand and cannot understand why one driver will recieve a "ticking off", whereas another may recieve a one or two week ban.

I tend to try to get to the truth of these matters, nine times out of ten, the guy who recieves the ticking off apologies profusly, where as the banned guy is often disrespectful to councillors and slams the door on the way out!

Its going to be an interesting debate.

regards

captain cab

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin

I think any council that has it's own penalty points system is just asking for trouble. Surely it would be better just to rely on police penalty points.

Then any points are given by the courts, or admitted by drivers. This gets councils off the hook because they can just plead stupidity and blame others.

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IDFIMH

I support your points fully sussex.

In a strange kind of way its like this thing that Blair is pushing through at the moment.

We pay Judges to decide out fate, not unqualified politicians!

Captain cab

_________________
Think of how stupid the average person is, and realize half of them are stupider than that.
George Carlin