The High Court has confirmed that switching your taximeter on before you assist a disabled person – even if you do not actually charge them – is an office under the Equality Act 2010.

The Circumstances  

London Black Cab driver Thomas McNutt was found guilty of an offence under section 165 of the Equality Act 2010 when he switched on his taximeter before assisting the complainant, Emma Vogelman, with loading her wheelchair.  Mr McNutt was found guilty despite not actually charging the complainant any money, in fact he did not end up taking Ms Vogelman.

The case stated

Mr McNutt sought an appeal by way of case stated.  The questions before Mr Justice Julian Knowles were: 

  1. Did Mr McNutt make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017?
  2. Did the magistrates err in law by convicting him of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?

The main issue on the appeal is whether a ‘charge’ was made by Mr McNutt by the act of him switching on his taximeter before Ms Vogelman had boarded, even though she never entered his taxi, no money was demanded (either expressly or by implication) and they ended up travelling in a different taxi. 

Mr McNutt argued that the temporary activation of a taximeter without more does not result in the making of a ‘charge’ within the meaning of s 165. He argued that action alone is not sufficient to amount to a charge in circumstances where Ms Vogelman did not enter his cab, no monies changed hands, no price was quoted and no services rendered. He says there has to be a demand for the fare (either expressly or by implication) before the taxi driver ‘makes a … charge’ within s 165(4)(b). 

Mr McNutt also argued that a charge is not made until the end of the journey because then and only then can the payable amount be determined with certainty. 

Transport for London, respondents in the case, argued that the phrase ‘make any additional charge’ in s 165 is not restricted to merely occurring at the point at which the metered fare (including an impermissible extra amount) is actually demanded at the end of the journey, but should also include: 

  1. when an indication is given by the driver at the point of hiring that they will be made liable to an additional charge and;
  1. where the taximeter is switched on before the disabled person and their wheelchair have been loaded, thereby creating a pecuniary obligation on the disabled passenger to pay the metered fare, the boarding process taking more time than it would for a non-disabled person, thereby resulting in an additional charge.

TfL argued that if Mr McNutt’s argument is correct, most taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver. 

The judgement

Mr Justice Julian Knowles dismissed Mr McNutt’s appeal ruling that “…in my judgment the words ‘make an additional charge’ in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.

 In relation to TfL’s argument that, by giving an indication at the point of hiring, this would put disabled people off, Knowles J said: “In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind.”

Implications

Whilst this case related to a TfL licensed Black Cab driver, Knowles J noted that “I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165… I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London. 

“Providing an inflated fare estimate to a disabled passenger would in my view infringe s 165(4)(a) even though there may be no liability on the passenger (who may refuse to accept the estimate). To amplify what I have already said about taxi drivers providing inflated fare estimates if, for example, a licensed private hire company had a poster in the window of its office to the effect that there was a £50 surcharge for a wheelchair user, then that would amount be a contingent additional charge caught by s 165(4)(b). If this were not so then private hire companies could avoid taking disabled passengers without consequence which, for the reasons I have already given, would be inconsistent with the entire purpose of s 165.”

Stephen McCaffrey

Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.

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