Taxi Driver Online

Ex Dundee taxi chief who once said all cabs should be wheelchair-friendly loses fight for non-accessible car

https://www.eveningtelegraph.co.uk/fp/e ... sible-car/

A Dundee taxi driver who once called for all city cabs to be wheelchair-friendly has had his own appeal to drive a non-accessible car dismissed by a court.

City cabbie Erik Thoresen, from Lochee, had asked to stop using a wheelchair-accessible vehicle in May 2016 – but his application was rejected by Dundee City Council.

In his appeal, heard at Dundee Sheriff Court, Mr Thoresen claimed that the authority’s “mixed use” taxi policy – which maintains a 60/40 split between wheelchair-accessible vehicles and saloons across the city – was unfair.

However, Sheriff George Way has ruled that the council’s licensing committee had laid out its reasons for rejecting his application in a “straightforward manner”.

It marks a dramatic shift in stance for Mr Thoresen, who had previously called for all taxis in Dundee to be wheelchair-accessible when he was chairman of the Dundee Hackney Association.

When he applied for his licence in 2004, he accepted the council’s requirement that he have a car that was wheelchair-accessible.

However, in submissions to Sheriff Way, Mr Thoresen said he wished to stop driving a wheelchair-accessible vehicle because of the higher costs associated with them compared to normal saloons.

Dundee City Council had previously committed to the introduction of an “economic fairness mechanism” in order to balance costs between saloon drivers and wheelchair-accessible drivers.

He claimed the council had not operated this policy fairly.

However, the local authority contended that it had considered Mr Thoresen’s application on its merits, which it said were “self-evidently poor”.

Sheriff Way concluded that the licensing committee did not act in an “unreasonable manner” in refusing the cabbie’s request.

He said: “I can find no evidence, that persuades me, that the committee did not act in a rational and fair way towards the applicant.

“The bar that the pursuer must overcome is a high one… I simply cannot hold that the high bar has been crossed.”

Mr Thoresen was represented by the GMB union, which will now be held liable for Dundee City Council’s legal fees for the case.

A GMB spokesman said: “In light of the decision the judgment is currently being reviewed by our legal team, following which our next steps will be considered.

“All fees for legal representation are met centrally by the GMB itself.”

Wonder what that's all about - sounds interesting

Hmmmm.

I hope the reason he wanted all to be WAVs once, but not now, is down to him wanting all drivers to have the same licensing requirements, rather than an I'm more deserving than you stance.

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IDFIMH

what you sow you shall reap !!!!

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

As I recall it Mr Thoresen was one of those who got a free WAV plate when the council opened the city up to anyone presenting a WAV for licensing. Those with saloon plates were allowed to retain that option.

So after a spell Mr Thoresen cried foul and said that there should be a level playing field, thus ALL the plates should be WAVs, and the saloons should be made to convert.

That was when the impetus was more towards an all-WAV fleet, but the council then decided to adopt a mixed fleet, and came up with some kind of formula for the numbers.

So suspect then Mr Thoresen concluded that an all-WAV fleet just wasn't going to happen, so started campaigning to be allowed to run a saloon, but obviously that process has been unsuccessful, culminating in the court case reported yesterday.

Much the same in Aberdeen - think they've still got a mixed fleet despite some sort of legal opinion that the whole fleet should be WAVs, and that opinion is from the 1990s? Could be wrong about that date, but certainly from many years ago.

and probably a marked man from the councils point of view he'll probably need to tread very carefully

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lack of modern legislation is the iceberg sinking the titanic of the transport sector

An article from a legal news website which outlines the judgement in a bit more detail, but without having to read the actual judgement

Taxi driver fails in legal challenge against ‘unfair’ mixed fleet vehicle policy

https://www.scottishlegal.com/article/t ... cle-policy

A taxi driver who claimed that a Scottish local authority’s “mixed fleet” policy was “unfair” after the council refused his application to vary his licence by switching his wheelchair accessible vehicle to a cheaper saloon car has had his appeal dismissed.

It was argued that there was “no economic fairness” in the policy and that in refusing the application the licensing committee exercised its discretion “unreasonably”, but a sheriff ruled that the council did not err in law in reaching their decision.

Dundee Sheriff Court was told that in May 2016 the purser Thorstien Thoresen, 66, who has held a taxi licence since 2004, applied to alter the conditions of licence by allowing his current WAV to be substituted by a saloon-type vehicle because he could not afford to operate the the more expensive taxi.

On 1 September 2016 Dundee City Council’s licensing committee refused the application and subsequently issued a statement of reasons to that effect, but the pursuer appealed on the grounds that the defenders “erred in law” and “exercised their discretion in an unreasonable manner”.

'Unfair policy’

Sheriff George Way was told that prior to November 2003 the majority of standard taxi licences granted by the defenders were saloon cars, but after that date it was a condition that all new licences should be WAVs.

Following a public consultation in 2012 after the introduction of the public sector equality duty imposed by the Equality Act 2010, the policy was refined and now aims for a mixed fleet comprising around 60% WAV and 40% saloon cars, which allows for WAVs to service the needs of certain disabled passengers, but recognises that some elderly and ambulant disabled passengers find saloons easier to access.

But counsel for the pursuer, Adrian Stalker, submitted that when the council adopted the new policy it accepted in order for a mixed fleet policy to operate fairly, it would have to incorporate a mechanism to address the “inequality” caused by allowing some operators to place on service less expensive saloon cars, as opposed to more expensive WAVs.

However, no economic fairness mechanism had been introduced and there was no indication in the statement of reasons issued on 12 September 2016 that the committee recognised that an issue of “economic unfairness” to operators such as the pursuer actually existed.

It was argued that in operating the mixed fleet policy “unfairly” and as a consequence refusing the pursuer’s application for variation of his licence, the defenders exercised their discretion “unreasonably”.

‘Adequate reasons’

In response, counsel for the defenders Scott Blair submitted that the pursuers were seeking to argue that the policy was unfair, but a licensing appeal by way of summary application under paragraph 18 of schedule 1 to the Civic Government (Scotland) Act 1982 was limited to four grounds - only two of which were relied on in this case.

The sheriff court did not have jurisdiction to determine whether in exercising a function which was driven by the duty imposed by the 2010 Act, the defenders had acted unlawfully or unreasonably - a challenge to the policy itself ought to be made by way of a petition for judicial review.

It was also argued that the case presented on the merits of the position of the pursuer in the appeal was “wholly different” from the case presented to the defenders in the original application.

Further, Mr Blair submitted the statement of reasons were “adequate” in that it was evident that the committee did listed to the pursuer’s case for an exception to policy and did consider the application for variation on the merits, but they did not agree the policy was unfair and that it should no longer be applied.

In order to succeed in an appeal in terms of paragraph 18 of Schedule 1 of the Act, the pursuer required to demonstrated that the defenders: (a) erred in law; (b) based their decision on any incorrect material fact; (c) acted contrary to natural justice; or (d) exercise their discretion in an unreasonable manner.

The pursuer did not rely upon either (b) or (c) but did rely upon (a) and (d).

‘No error of law’

Refusing the appeal, the sheriff ruled that there the defenders had neither erred in law nor failed to exercise their discretion in an unreasonable manner.

In a written judgment, Sheriff Way said: “First, I note that, in relation to limb (a), the specification of the precise error of law that is alleged is somewhat lacking. Moreover, I accept Mr Blair’s submissions to the effect that the nature of these appeals is neither a rehearing at large, nor an opportunity to impugn the defenders’ policies per se. An attack on the adoption of a particular policy is, in my view, more appropriate to be raised by way of petition for judicial review.

“These proceedings are designed to provide a check on the decision making process followed by the defenders’ licensing committees. Mr Stalker’s submissions, on this point, are properly directed at the council’s failings with regard to the policy not, in my opinion, to the operation of it by the relevant committee. I prefer the submissions of Mr Blair and, therefore, I am content to find that the defenders did not err in law during their consideration of the pursuer’s application to vary his licence.”

In relation to limb (d), the sheriff observed that while the pursuer’s argument was “logically valid” it did not overcome the “high bar” to succeed, namely whether the decision complained of was one that “no reasonable board, having taken into account all the relevant circumstances, could have adopted”.

Sheriff Way added: “It is not enough that this Court might disagree with the conclusion reached by the committee on a particular application. I, again, prefer the submissions of the defenders on this point. This is not to say that I would have necessarily come to the same conclusion on these facts but that is not the issue here.

“It seems to me that that they had all the relevant facts and circumstances before them. There is nothing to suggest that they did not reflect upon them, apply their minds to the circumstances and the arguments for and against, before they came to a conclusion.

“The committee, in this case, have set out their reasons for reaching the conclusion that they did, in a straightforward manner. They had regard to the Council policy, the pursuer’s personal circumstances, weighed up the arguments and resolved to refuse the variation. I can find no evidence that persuades me that the committee did not act in a rational and fair way towards the applicant.

“The decision was not capricious or arbitrary. I simply cannot hold that the high bar has been crossed, so as to find that no reasonable committee could have reached the decision that the defenders did in this case. The appeal, accordingly fails on both grounds.”

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