McNutt v Transport for London [2019] EWHC 365 (Admin)

No designated taxi or PHV fitted with a taximeter can switch their meter on before loading a wheelchair passenger and no designated taxi or PHV can quote an inflated fare even if they do not actually demand that fare.

Mr McNutt & TfL

Mr McNutt, a TfL licensed black cab driver, was approached by a wheelchair passenger and the passenger’s assistant.  Mr McNutt activated his taximeter before he unlocked his wheelchair ramp and therefore before he loaded his wheelchair passenger and her assistant. 

Mr McNutt was challenged on this by his passenger on the basis that she will be charged extra as it will take longer to load her and this was contrary to the provision of the Equality Act 2010.

The passenger decided not to undertake the journey with Mr McNutt and got into another taxi.  The passenger was not actually changed anything by Mr McNutt.

Following a complaint to TfL, Mr McNutt was formally interviewed under caution and was reported for the offence contrary to s.165(7) of the Equality Act 2010.

Mr McNutt pleaded not guilty and consequently stood trial at the Magistrates’ Court on 23 May 2018.  Mr McNutt’s case, in short, was that there was for him no case to answer arguing that the offence contrary to s.165(7) of breaching the duty under s.165(4)(b) was not made until the exact point in time when the charge was levied, in other words, when the driver demanded payment. This could only be at the end of the journey. Here, no journey had been taken and therefore there could be no offence.

TfL argued that this was a contrived interpretation of the legislation. If followed it would have the impact of seriously undermining the effectiveness and integrity of important legislation designed to promote equality. Whatever charge would be levied would be determined by the meter and this had been switched on.

The magistrates decided that the process of making an additional charge started at the point in time when the Appellant (Mr McNutt) started his taximeter and that clearly the final required payment would include that period during which the complainant was boarding the vehicle. This is the type of situation that s 165 was meant to prevent. Accordingly, they found that there was a case to answer.

Accordingly, they found Mr McNutt guilty.

Mr McNutt sought to appeal his conviction by way of case stated seeking a ruling from the High Court on whether:

(1)    He made an additional charge for carrying a wheelchair user on 4 October 2017?

(2)    The Magistrates err in law by convicting the Defendant of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?

The Equality Act 2010

Section 165 of the Equality Act 2010 relates to passengers in wheelchairs and what is – and is not – permitted.
The section places a number of statutory duties on drivers of “designated” taxis and private hire vehicles.  A licensed vehicle is designated if it appears on a list maintained by a licensing authority for the purpose of section 167.

The duties are:
(a)    to carry the passenger while in the wheelchair;
(b)    not to make any additional charge for doing so;
(c)    if the passenger chooses to sit in a passenger seat, to carry the wheelchair;
(d)    to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;
(e)    to give the passenger such mobility assistance as is reasonably required.

S. 165(b) makes it unlawful for a driver is a designated vehicle to “make any additional charge” for carrying a disabled person who is in a wheelchair.

Under section 165(7), the driver of a designated vehicle commits an offence by not complying with the duties placed on them by section 165 unless he is specifically exempt by virtue of being issued with a medical exemption certificate under section 166.

There is no further definition or explanation in the Act as to the meaning of “additional charge”.

The arguments before the High Court

In brief, Mr McNutt argued that his conviction was wrong because he would have only committed the offence when he actually switched his taximeter off at the end of the journey and when he actually charged the passenger the fare.  Since he did neither of these, he cannot be guilty of an offence under section 165.

TfL on the other hand argued that the statutory construct of “additional charge” cannot be as narrow as suggested by Mr McNutt and should include, when, an indication of the cost is given to a passenger and where the taximeter is switched on thereby “creating a pecuniary obligation on the disabled passenger to pay the metered fare”.

TfL argued that “…to accept the Appellant’s (Mr McNutt) argument would mean that, for example, 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 driver would not, however, be liable for a breach of the duty in s 165(4)(b) because he would never reach the stage of demanding payment. The driver would then never have to carry a passenger in a wheelchair but would not be liable for the offence in s 165(7).”

The ruling

Mr Justice Julian Knowles did not agree with Mr McNutt’s argument.  Knowles J agreed with TfL’s argument that:

“…in a taxi fitted with a taximeter the passenger’s obligation is to pay whatever the meter shows at the end of journey, and so the moment the meter is switched on the passenger becomes financially liable for the fare, and it is thus at that point that the driver makes the charge.”

To this end the meaning of “charge” in the context of the Equality Act is that it places ‘a financial liability or commitment’ on the passenger.

Knowles J continued:

“Against that background, it cannot have been Parliament’s intention that the word ‘charge’ should be construed so that a taxi driver only becomes criminally liable for charging a disabled passenger more when he actually demands the additional fare at the conclusion of the journey. The example given by Mr Patience demonstrates why this is so. It would mean that an unscrupulous taxi driver would be able to avoid his duty to carry disabled passengers, and his duty to assist them if necessary, by quoting an inflated fare upon being flagged down, knowing that it will not be accepted and he will then be free to drive off in search of a non-disabled fare.

“In my judgment there can be no doubt that no later than the time a taximeter is switched on at the point of hire, an actual financial liability or commitment is imposed on the passenger to pay the amount shown on the meter when the hiring is terminated, and it is therefore at that point that the charge is made for the purposes of s 165(4)(b). 

“…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.”

Knowles J consequently ruled that Mr McNutt did make an additional charge and the Magistrates’ did not err in law in finding so.

Implications for the trade

Whilst this case focused on a London Black Cab driver, the Equality Act has national applicability and this was recognised by Knowles J in his ruling:

“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.”

The ruling in this case is relatively straight forward for taxis (or PHVs fitted with meters) as they are fitted with calibrated meters.  In light of this ruling, it is now clear that a driver of a licensed taxi (hackney carriage) cannot switch their meter on until after a passenger in wheelchair has been fully loaded and secured.

What this ruling means for drivers and operators of private hire vehicles is that they cannot inflate the quoted fare for a journey on the basis of the passenger being in a wheelchair.  The quoted costs of a journey in a PHV must be the same as what it would have been for an abled body person.

Knowles J confirmed this in his ruling saying:

“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.”

Prior to this case, there has not been any prior authority on the proper construction of section 165(4)(b) and to this extent, given also that this was a High Court ruling, the ruling in this case will be treated hence forth as the authority on the meaning of “additional charging” in the context of the Equality Act.

To this extent therefore taxi and private hire licence holder must ensure that the ruling in this case be adhered to, to avoid them falling foul of equality legislation.

It is a criminal offence for a designated taxi or private hire licence holder to operate contrary to the provisions of the Equality Act 2010 and those found guilty of doing so can be fined up to £1000 and, more importantly, may face a review of their licence or the option to revoke it all together..

Stephen McCaffrey

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

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