Issues relating to the licensing of taxis and private hire vehicles

Written evidence from Local Government Regulation (TPH 48)

1. Introduction

1.1 Local Government Regulation [(LG Regulation), part of the LG Group, formally LACORS] promotes quality regulation to councils in the areas of trading standards, environmental protection, streetscene, licensing and gambling, food hygiene & standards, animal health & welfare, animal feed, health & safety and private sector housing. We offer comprehensive advice and guidance to councils and their partners, disseminating good practice and providing up-to-date information on policies and initiatives that affect local people and local services. We lobby on behalf of councils and ensure that legislation and government policy can be practically implemented and contribute to sector-led improvement.

1.2 LG Regulation provides services at the national level which support and are complementary to the regional and local support provided to councils, as well as the work councils themselves undertake. In providing this written submission LG Regulation is acting on behalf of council licensing authorities in England and Wales (outside greater London).

2. Terminology

2.1 Taxis are referred to in legislation, regulation and common language as ‘hackney carriages’, ‘black cabs’ and ‘cabs’. The term taxi is used throughout this submission and refers to all such vehicles.

2.2 Private hire vehicles (PHVs) include a range of vehicles including minicabs, executive cars, limousines and chauffeur services. The term PHV is used throughout this submission to refer to all such vehicles.

3. Introduction

3.1 Taxis and PHVs are an important mode of local transport. They are of particular importance in areas that are poorly served by other forms of public transport such as rural communities. Women aged 16-20 make the greatest number of trip stages in taxis and PHVs [1] . Elderly and disabled users rely on the service taxis and PHVs provide as what is sometimes a crucial form of public transport. Taxis and PHVs also service the night time economy of many areas, ensuring the public return home safely. The ‘local cabbie’ is often regarded as an ambassador of the local area, where they are the first contact for tourists/local businessmen adding to the local economy and business community.

3.2 Local councils in England and Wales (outside greater London) license taxi and private hire vehicles (PHVs), the primary purpose of which is to protect the public [2] . Taxis and PHVs regularly transport vulnerable groups such as disabled passengers, children to school proms and young girls on nights out.

3.3 Because of the clear interest in public safety councils have the autonomy to attach various conditions to these licences such as group 2 medical checks, local knowledge tests and enhanced CRB disclosure before being passed as ‘fit and proper’ to transport the public.

3.4 These conditions of licence vary from authority to authority, often to consider the needs of the local area (such local knowledge tests), however over time this has led to inconsistency of service to the licensed trade and therefore the traveling public. The Department for Transport (DfT) have issued guidance to licensing authorities [3] on what they should consider as part of local taxi and PHV licensing policy, however as the guidance is not statutory some councils do not follow the recommendations, or only select certain parts which has created differing standards. We believe that certain conditions of licence for example Criminal Record Bureau (CRB), and medical checks on drivers should be mandated.

3.5 In 2009 LG Regulation took on taxi and PHV licensing as a new policy area. We visited over 50 councils in England and Wales, taxi and private hire trade groups and Government to fully understand the issues and concerns, with a view to supporting the local government sector on a national level. Of a range of issues which arose the key consensus was that the legislation governing taxi and PHV licensing was outdated and in need of review. Outdated and piecemeal legislation has lead to one key area of concern what is regularly referred to as Cross Border Hiring (CBH).

3.6 The term can be used to describe the following:

a) Where a taxi licensed in council A, operates as a private hire vehicle in council area B

b) Where a private hire operator licensed in council A, operates from a base in council area B.

c) Where a private hire vehicle licensed by council A is called to pick up and/or transport a passenger to a destination in council area B.

4. Where a taxi licensed in council A, operates as a private hire vehicle in council area B

4.1 This type of CBH is the key area of concern for many licensing authorities in England and Wales and any further references in these circumstances relates to this practice. An example of where this has occurred on a large scale recently is the licensing of taxis in Berwick-upon-Tweed [4] . Many prospective drivers who wished to operate in Newcastle were refused licences as they did not reach Newcastle’s conditions of licence. These same drivers then applied and were successful in obtaining taxi licences in Berwick as a consequence of Berwick having less stringent conditions of licence. These vehicles and drivers operated ‘cross border’ as private hire vehicles in Newcastle.

4.2 The legality of this was debated in R (app Newcastle City Council) v Berwick-upon-Tweed Borough Council however, the judgement confirmed that this was legal, and as such councils have no powers to stop this practice. Though our conversations with councils there are examples of vehicles licensed in Berwick which operate throughout England and Wales, one example as far as South Wales. This problem is also not exclusive to vehicles licensed in Berwick; many other licensing authorities have encountered vehicles operating in their areas which have been licensed elsewhere.

4.3 This is a significant public safety concern as licensing officers in these districts have very little enforcement powers to stop vehicles and drivers which act against their conditions of licence. Councils will usually operate with a regulatory/licensing committee made up of councillors that set policy and consider breaches of conditions, convictions and driving endorsements, where drivers’ licences can be suspended or revoked. Therefore in these instances locally elected councillors have no say who can be considered fit and proper to transport the public based on local needs.

4.4 Local taxi and private hire trades in these areas also have concern as it is not seen to be fair that they must abide by one set of conditions, where as the cross border vehicles have lower standards and little or no enforcement. The unfair and unsafe practice of cross border hiring undermines localism as many applicants are choosing to be licensed in areas which are a significant distance from where they intend to operate.

4.5 Stockton-on-Tees Borough Council have experienced similar problems and the issue was debated again in the most recent case in this area Stockton-on-Tees Borough Council v Fidler and others. Our interpretation of the judgement confirms that the law relating to CBH is correctly laid down in previous case law (Britain and Gladen), and as such licensed taxis may still undertake pre-booked hirings anywhere in England and Wales. As the judgment goes further than the Berwick case to clarify this position licensing authorities are concerned that prospective PHV drivers around England and Wales will see this as confirmation that they may seek out an authority with low fees, lower standards of driver and vehicle checks and less enforcement operations, thus increasing this practice.

4.6 Mr Justice Langstaff noted within the judgement (re a change to the law) it... ‘must be a matter for consideration and review by Parliament rather than by the courts’ therefore local councils are looking to Government to rectify this loop-hole in the law.

4.7 Throughout our conversations with local licensing authorities It is widely thought that this problem is getting worse and will have impact on future national events such as the Olympics in 2012.

5. Solutions

5.1 To rectify the problem of CBH LG Regulation would recommend that the Government considers adopting national standards for certain key conditions which do not require local consideration. LG Regulation has looked into the range of conditions which are present in licensing authorities and developed a Standard Conditions Template [5] to act as guidance for councils reviewing their policies. The DfT Best Practice Guidance also has assisted many licensing authorities develop policy, however these documents are not statutory and therefore there will continue to be inconsistency which leads to some applicants searching out licensing authorities with lower standards causing the cross border hiring problem we see today.

5.2 Alongside statutory national standards, joint enforcement agreements would be welcomed, which allow licensing enforcement officers to enforce vehicles which have been licensed in other areas. An example of where this has been successful in other regulatory areas is the flexible warranting system for health and safety enforcement between the Health and Safety Executive and council environmental health officers (further info can be found in Annex A).

5.3 Many licensing authorities would also welcome fixed penalty notice (FPN) powers, which would give licensing enforcement officers an instant control measure to ensure drivers were adhering to locally set conditions. FPNs have been particularly effective in the control of smoking in public places, recent smokefree legislation compliance data indicates that 2,268 FPNs were issued in England between July 2007 and June 2010 [6] . It would however be important to have guidance on what particular offences would be deemed suitable, as more serious offences which could threaten public safety should be heard at committee level with the option of revoking or suspending the licence. Any income generated from issuing FPNs should be redistributed within the local licensing service which would increase enforcement, reduce license fees and improve the service generally.

5.4 Most licensing authorities would greatly welcome a complete review of the legislation relating the taxi and PHV licensing. Legislation and case law has developed piecemeal and lead to inconsistency in service and standards, and burdened councils with high court costs where they have looked to rectify the law in court rather than by statute. Legislation such as the Town Police Clauses Act 1847 is antiquated and CBH is one outcome of such an approach. This also goes against the principal of consistency, one of the five principals of Better Regulation. [7]

6. The following are other issues identified during our research which have led to inconsistency across England and Wales. We would recommend the Committee include these in any further review:

6.1 Restricting the number of hackney carriages in an area (often referred to as quantity restrictions). At present approximately 100 local councils continue to restrict numbers. This is currently a local political decision.

6.2 Driver training. Goskills, the sector skills council for passenger transport has developed a comprehensive curriculum to help ensure taxi and PHV drivers are trained in all aspects of transporting the public. Previous funding to complete the training has now subsided, and most local councils will not make the qualification mandatory for all new drivers because the costs of the training will fall to drivers as part of license fees (taxi and PHV licensing is cost recoverable).

6.3 Enhanced CRB checks. Driving a taxi/PHV is a notifiable occupation (category 1 Home Office Circular 6/2006) and the police should notify the licensing authority of all convictions for recordable offences. The police should also consider notifying the licensing authority of minor offences, cautions, fixed penalty notices and other information in accordance with Home Office Circular 5/2005. This additional information required by enhanced CRB disclosures is considered essential to the licensing process due to the nature of the role of a taxi/PHV driver, and vulnerability of many passengers. LG Regulation have put forward a written submission into the Government’s review of the criminal records regime to stress these points.

http://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=2C7B27&id=24681

6.4 Airports. The enforcement of taxis/PHVs on airports is also a key concern for many local licensing authorities. Airports such as East Midlands Airport are situated on private land. As a result some have secured a contract with a taxi/private hire company to act as their provider to take passengers away from the airport. No other operators are allowed to ‘tout’ for business on the airport’s property. This causes problems if there are not enough vehicles and drivers available to take away the latest plane load of passengers and this in turn draws in drivers from other districts enticed by the possibility of a lucrative round-trip. As licensing officers do not have the powers to enforce taxis on private land many drivers do not comply with their conditions of licence and, for example, some councils have received many complaints for drivers charging disproportionate amounts above the fare tariff, or not knowing the local area.

6.5 We are more than happy to discuss any of the issues raised in our response to this review, and give oral evidence in the new year.

7. Annex A - Working across council boundaries: a note on Health & Safety flexible warranting

7.1 Objectives

Flexible warranting is a voluntary scheme that allows one enforcing authority to appoint inspectors from another authority to undertake work on its behalf (the arrangement can also apply between the Health & Safety Executive and local authorities). It provides a practical approach designed to make the best use of joint resources by removing the current barriers that restrict where an authority or individual inspector can apply health and safety legislation. It provides a flexible approach that allows local deviation from the national structure dependent on available resources, risk profile and economic activity within a locality.

7.2 Governance

S.19 of the Health & Safety at Work Act 1974 provides the legal basis for local authorities to appoint inspectors to carry out relevant statutory provisions. The mechanism for formalising a flexible warranting scheme is a Memorandum of Understanding. It sets out demarcation arrangements and also covers the management arrangements – including for example indemnification of inspectors, communication between authorities, competence requirements and dispute resolution. The extent to which flexible warrant holders will intervene on behalf of another enforcing authority can also be varied by the Memorandum of Understanding. It is supported by an Inspector’s Manual, providing further details of the arrangements between the enforcing authorities, and practical tools to assist with the operation of the flexible warrants system.

7.3 Benefits & Outcomes

Benefits of flexible warranting include being able to provide local solutions to local issues; better use of scarce resources; timeliness of interventions and responsiveness; officers utilising skills more often; and delivering sensible health and safety regulation.

7.4 Further information on partnership working in regulatory services can be found in: Collaborative councils guidance on partnership working in regulatory services

http://www.lacors.gov.uk/lacors/upload/22768.pdf

8. Annex B - Types of Licence

8.1 Taxis require two types of licence:

· Hackney Carriage Proprietors (Vehicle) Licence

· Hackney Carriage Drivers Licence

8.2 The provision of a private hire service required three types of licence:

· Private Hire Operators Licence

· Private Vehicle Licence

· Private Hire Drivers Licence

9. Taxi and PHV Councillor Handbook

9.1 Members of the Committee may wish to refer to the LG Regulation Taxi and Private Hire Vehicle Licensing Councillor Handbook. The handbook has been developed to help councillors understand some of the key issues, and difficulties that can arise in this complex area of business regulation.

http://www.lacors.gov.uk/lacors/ContentDetails.aspx?authCode=2C7B27&id=24324

10. Case Studies

10.1 LG Regulation has developed a number of case studies which highlight areas of good practice within local licensing authorities.

http://www.lacors.gov.uk/lacors/search.aspx?N=6%206069%2033%2041%2053&Ne=6000&Ns=DOC_PUBLISHED&Nso=1&authcode=2C7B27&id=&tl=6000&prev=6+6067+33+41+53+6000

December 2010