I have just fired this off to the LU at Cannock:
Quote:
Below is an amended version of a submission I made a week ago to Mr Shilvock's [head of Environmental Health] email address and it follows his request to send it to the licensing unit email address instead:
I have now had sight of the above document and it has been agreed with other members of the trade that a meeting will be held to determine our views on the proposed changes. It is intended to divide the proposals into four categories:
GREEN: We agree wholeheartedly with the proposal. YELLOW: Some members of the trade may have expressed concerns and we therefore may seek minor amendments. ORANGE: We have concerns, are seeking legal advice and reserve the right of appeal. RED: At least one member of the trade will appeal in court against such change in the event of it being passed by the council.
It is with regret that I personally have already flagged two proposals as RED:-
1) The requirement that the use of licensed vehicles for social and domestic purposes be removed from the wording of our insurance policy documents. There is neither a legal nor a public interest basis for this proposal and therefore I personally would take the council to court on this matter.
You state that there is case law supporting this proposal. Could you please cite the relevant case law as this would enable all of us to find it via web search engines and read it for ourselves?
Furthermore, the Law Commission has recently published its own consultation document for proposed changes to primary legislation. In that document it is stated that licensed Hackney Carriage and Private Hire vehicles should be allowed to be used privately, i.e. for social and domestic purposes but the onus would be on the driver to demonstrate that this is so in the event of enforcement.
I am the only person insured to drive my Hackney Carriage vehicle and this is because my wife does not hold a HC/PH driver's licence. When we go on holiday we take her vehicle as we wish to share the driving. However, on occasion when I am at home, although I have access to my wife's vehicle, I do use my HC vehicle for private use on as is permitted by my insurance policy. When this is so I always wear my HC/PH driver's badge in a manner that it is plainly and distinctly visible just as I do when the vehicle is being used for Hire and Reward.
Yates versus Gates 1970 states that a HC vehicle can only be driven by a licensed driver and that it cannot change its status from moment to moment in order that an unlicensed driver may use the vehicle for private purposes, even if he is the proprietor of said vehicle. This case law does NOT prohibit the use of HC vehicles for social and domestic purposes. It only requires that the driver of a HC vehicle always be licensed as a HC driver regardless of the status of use.
Imagine the following scenario:
Towards the end of his shift a driver/proprietor receives a call from his partner asking him to pick up some Chinese takeway on his way home. He parks his licensed vehicle in front of the premises, enters, orders the food, waits and collects it when it is ready. He places it safely in the front passenger foot well and drives home. On his way he is involved in a collision resulting in injury to himself and/or another road user. Under your proposal he would be uninsured, Can you please explain how allowing such a situation or any other 'grey area' where the status of use of the vehicle as either SDP or H&R may not be clear would be in the public interest?
Please note also that mechanics are already permitted by law to drive HC/PH vehicles for test purposes. To require proprietors to notify the Licensing Unit each time they take a vehicle for repair or service and provide the details of any mechanic likely to test drive the vehicle is both unnecessary and contrary to the public interest given that it could prove difficult to arrange at short notice, especially at the weekend, for a mechanic to inspect and test a vehicle should a fault or suspected fault develop. Drivers/proprietors as a result of this requirement may postpone potentially urgent maintenance on order not to fall foul of this condition and in so doing could be putting their safety, that of their passengers and other road users at risk. Apart from that this proposal is nothing other than arbitrary, unnecessary and capricious bureaucracy.
I code the above proposal regarding notifying the council of maintenance and the details of any mechanic road testing the vehicle as ORANGE. I file it under "the proposals of the authorities of a renegade fiefdom or offshore rogue state outside of the UK and EU."
It is my view that the proposal regarding the wording of insurance documents is gratuitous, vindictive, is devoid of any public interest element and therefore serves no purpose. I would therefore appeal in the magistrates' court against this condition on this basis. This proposal is also filed as above.
2) The requirement that in future all HC vehicles would have to be Wheelchair Accessible Vehicles. You may wish to consider why the government abandoned proposals to make this law by this year. The reason is that WAVs discriminate against the majority of disabled people who are not wheelchair-bound and who may find it difficult to step up into a WAV even with the help of an additional step, given its greater ground clearance. I suspect that this is simply the mealy-mouthed agenda of reintroducing mixed fleets of PH and HC vehicles rearing its ugly head yet again, starting late 2004 when you wrote to all proprietors advising them to license some of their vehicles as PH in order to undertake booked journeys completely outside the district boundaries. You stated that to undertake such journeys in a HC vehicle would be "illegal." This of course was completely untrue. In 2007 the PH agenda reared its head again when you wrote to all proprietors again to advise us that all HC vehicles would have to be WAVs by 2012 and that all other vehicles would have to be licensed as Private Hire. In fairness this proposal was dropped in line with the government's change of policy but for some inexplicable reason it rears its head again here in Cannock Chase.
I would like the Council to consider alternative and less onerous means of increasing the numbers of WAVs in Cannock Chase and one example would be to allow the licensing of rear-loading WAVs, e.g. the Fiat Doblo that is approximately one third the purchase cost of a side-loading 7-seater WAV from either Peugeot, Mercedes or LTI.
You currently refuse to license these "for safety reasons." At a meeting in 2009 I asked Karen Sulway if any research had been conducted in support of any claim that rear-loading WAVs were unsafe and she replied that it was RoSPA who had reached this conclusion. I have looked at their website since and I find no mention of rear-loading WAVs. Could you please provide links to such research undertaken either by RoSPA or anyone else into any safety issues regarding rear-loading WAVs?
I would like you to consider the following scenario:
A side-loading WAV carrying a wheelchair-seated passenger breaks down on the M6 between Junctions 9 and 8 (an elevated section where the hard shoulder is quite narrow) on the way to the airport.
How is the driver going to evacuate his passenger from the vehicle as is required for safety reasons?
To the left there is a barrier and a fifty-foot drop, to the right is Lane 1 of the motorway and a succession of 44-tonne trucks travelling at 56mph that cause the vehicle to wobble as each one passes. Would it not be safer to be using a rear-loading WAV in such a situation or any other where space to the left of the vehicle is insufficient and loading/unloading to the right is going to bring both the driver and the wheelchair-seated passenger into conflict with other road users?
I suggest that there are advantages and disadvantages in terms of safety of both types of WAV depending on the situation with neither type being safer than the other overall. The rear-loading WAVs have the advantage that the wheelchair passenger is already facing either forward or backward as is required for safety reasons upon loading via the ramp at the rear. Tthere is no need to rotate the passenger into the appropriate position before securing them with the straps. This is easier said than done when the passenger is quite tall and rather heavy in such a confined space. You will of course be aware that the council revoked the licence of a long-serving driver a couple of years ago because he was unable to rotate the passenger into the appropriate forward or rearward position. Instead of refusing to take the passenger, fearful of the of the consequences of so doing, he took the chance of carrying the passenger in a side-facing position unsecured. Unfortunately the wheelchair toppled over and the passenger sustained minor injuries.
I take this opportunity to state that the proposal to require all drivers of WAVs to undertake training in the securing of wheelchair-bound passengers, I have coded GREEN.
I propose that the licensing of rear-loading WAVs be allowed on the condition that bright reflective strips are placed on the rear of the vehicle.
Perhaps it is just a coincidence that allowing licensing of affordable rear-loading WAVs would also come into conflict with an agenda to reintroduce more Private Hire vehicles in the district by making the purchase and running of HC vehicles quite an onerous prospect for many proprietors. Either way I think it inappropriate that wheelchair-bound disabled passengers be used as pawns in order for you to pursue such a mealy-mouthed agenda. You claim that mixed fleets would better meet the demands of passengers in the district yet have failed to provide any evidence to this effect.
Whilst there is frequently insufficient space on taxi ranks in the district PH vehicles would still need to park somewhere. Traditionally this was either in supermarket car parks or at the Operator's base. I doubt that there would always be sufficient space available now in either of these types of location.
Could you please allow access to any unmet demand surveys that you have conducted, including general unmet demand, that of wheelchair-bound passengers and other non-wheelchair-bound disabled passengers? Anecdotal evidence is insufficient in this regard.
If these surveys have not already been conducted I suggest that the proposals to coerce the trade into purchasing more side-loading WAVs and requiring the rest to be licensed as PH vehicles are nothing more than capricious or even vindictive.
I have just spoken to Mr Schiller [very good NPHA solicitor] and we are now in agreement that an appeal hearing before the courts would be inevitable in the event of the two proposals above being implemented by the council on the basis that these proposals are neither reasonable, necessary nor in the public interest.
I take this opportunity to state that Mr Schiller has also brought to my attention an affordable insurance package (approximately £1 per week per driver) that he is offering in conjunction with the National Private Hire Association that would cover the legal costs of any appeals, PACE interviews or appearances before the Licensing Committee. This would remove the financial deterrent from appealing against short-term suspensions issued by LEOs under their Delegated Powers, for example, as well as appealing against unreasonable changes to licensing conditions.
Please not that the above objections are my own personal statement and this is not necessarily the view of the trade as a whole at this stage, although I will be inviting feedback to the above from the rest of the trade in the coming weeks.
Yours sincerely,
Steven Toy.
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