he Department for Transport’s consultation on statutory guidance for licensing authorities has now closed. As all the readers will know, the draft statutory guidance has been developed by the Department for Transport (DfT) to ensure the safety and protection of taxi and private hire users.
The new statutory guidance, according to the DfT “…reflects the significant changes in the industry and lessons learned from experiences in local areas since the Department’s Best Practice Guidance was last updated. This includes extensive advice on checking the suitability of individuals and operators to be licensed; safeguarding children and vulnerable adults; the Immigration Act 2016 and Common Law Police Disclosure (which replaced the Notifiable Occupations Scheme).”
It is clear from the above that the draft statutory will have an impact on the licensed trade in the very near future and in this editorial, I want to focus on the specific measures and proposal that I believe will come out in the final version of the statutory guidance and what the implications would be for the licensed trade.
Before I consider the specific measures and proposals however, it is important for the trade to understand the context and significance of the statutory guidance to come. The statutory guidance will carry significantly more authority than the Best Practice Guidance, for example, and for this reason the trade must take notice.
Status of the guidance
The proposed statutory guidance makes it clear that licensing authorities must have regard to the guidance when exercising their licensing functions. Having regard to the statutory guidance “…requires public authorities, in formulating a policy, to give considerations the weight which is proportionate in the circumstances. Given that this is statutory guidance issued directly to address the safeguarding of the public and the potential impact of failings in this area, the importance of thoroughly considering these recommendations cannot be overestimated. It is not a question of box ticking; the recommendations must be considered rigorously and with an open mind.”
As I will consider later in this article, these changes may be as draconian as reviews of licences and revocations based on the new statutory guidance. In these circumstances, such is the importance of acting on the principles set out in the guidance that the department stated, in relation to licensing authorities: “…it may be that this Guidance might be drawn upon in any legal challenge to an authority’s practice, and that any failure to adhere to the Guidance without sufficient justification could be detrimental to the authority’s defence.”
The DfT’s expectation is clearly expressed here and this should be a strong indication to the licensed trade that real changes should be expected in the near future on a local and national level.
The DfT, in its response to the Taxi and Private Hire Task and Finish Group, has already indicated that it supports minimum standards over legislating on issues associated with cross-border hiring.
In its response to the Task and Finish Group report, the Government indicated that it will take forward legislation when time allows to enable it to adopt minimum standards but that, in the interim, it will continue to review its statutory and best practice guidance. The statutory guidance “will ultimately shape the content of national minimum standards.” It is therefore clear from this that the proposed statutory guidance will form the basis of the national standards moving forward.
This was confirmed in the statutory guidance document itself that stated:
“There is consensus that common core minimum standards are required to regulate better the taxi and PHV sector, and the recommendations in this document are the result of detailed discussion and consideration. The Department therefore expects these recommendations to be implemented unless there is compelling local reason not to.”
What specific changes then can the licensed trade expect in the near future?
The draft statutory guidance will compel licensing authorities to have “cohesive policy documents”. Whilst most licensing authorities do have comprehensive licensing policies, not all do particularly more rural districts. This will need to change when the statutory guidance comes into force.
It is worth noting that in areas where there are existing and comprehensive licensing policies, the DfT has made it clear that it expects these to be reviewed in light of the statutory guidance and for licensing authorities to implement changes.
Therefore either way, the licensed trade should expect policy changes in light of the forthcoming statutory guidance. As a minimum, the department has stated that policies should include comprehensive sections on convictions, a ‘fit and proper’ person test, licence conditions and vehicle standards.
In light of the fact that the guidance is aimed at protecting users, the statutory guidance has recommended a conviction policy at Appendix A of the draft statutory guidance. Bearing in mind the requirements that licensing authorities must have regard to the guidance, the proposed convictions guidance should serve as a good guide to the licensed trade of the type of conviction policy approach that licensing authorities may take.
In addition, the statutory guidance will also implement a language proficiency requirement. Most licensing policies in my experience do not currently impose language proficiency requirements in a formal way through, for example, formal testing. This is likely to change in the forthcoming statutory guidance. On the basis that that department has directed licensing authorities to review licences following the publication of the statutory guidance, it is likely that licence holders will be required to pass a language proficiency assessment and could face a suspension of revocation of their licence if they fail to meet the locally set standards. In such cases, there will be a right of appeal.
Fit and proper test
Fit and proper is not defined in legislation despite it being the central pillar of decision making in taxi and private hire licensing matters. Several attempts have been made to find a standard definition but now the department has formalised an approach by defining fit and proper in the statutory guidance:
Without any prejudice, and based on the information before you, would you allow a person for whom you care, regardless of their condition, to travel alone in a vehicle driven by this person at any time of day or night?
This will become the de facto standard by which taxi and private hire drivers will be judged moving forward. It is therefore the case that if, on the balance of probabilities, the answer to the question is ‘no’, the driver or applicant will be judged not to be fit and proper and therefore cannot hold, or be granted, a licence. It is interesting that the draft statutory guidance makes reference to “the individual should not hold a licence” which implies again that the department expects licensing authorities to review existing licence in light of the statutory guidance.
Under normal circumstances where the balance of probability test applies, as a minimum a 49/51 split will tip the balance. However the statutory guidance has taken this further by stating that a 50/50 split should also tip the balance against the licence holder:
“… an applicant or licensee should not be ‘given the benefit of doubt’. If the committee or delegated officer is only “50/50” as to whether the applicant or licensee is ‘fit and proper’, they should not hold a licence.”
Disclosure and Barring Service
The biggest changes the licensed trade can expect are to criminal records and other background checks.
At present, all taxi and private hire drivers and applicants for a drivers licence are subject to an enhanced disclosure and barring service (BDS) check. However, not every taxi and private hire driver and applicant for a drivers licence is checked against the barred list. The statutory guidance will make this a mandatory requirement for individuals applying for or renewing taxi and private hire driver licences.
The draft statutory guidance explains the difference:
“Enhanced certificates with check of the barred lists include details of spent and unspent convictions recorded on the Police National Computer (PNC), any additional information which a chief officer of police believes to be relevant and ought to be disclosed, as well as indicating whether the individual is barred from working in regulated activity with children or adults.”
There has been an increase in the number of licensing authorities who have made it a requirement for licence holders to subscribe to the DBS’ update service. This is because the update service is far less bureaucratic and much cheaper for licence holders.
However, the update service holds a far greater benefit which is instant access to up to date criminal records and barring information relating to licence holders. It is this benefit that has resulted in the draft statutory guidance calling on licensing authorities to make use of the DBS update service.
In light of this, more drivers should expect the requirement to subscribe to the update service to be implemented where they are licensed. The statutory guidance will additionally make it a requirement that licensees should be required to evidence continuous registration and nomination throughout the period of the licence.
Checking licence holders and applicants who have resided abroad for extended periods of time is a postcode lottery with very little consistency around England and Wales. The draft statutory guidance is likely to change this as it is putting forward a requirement that licensing authorities should seek criminal records information from overseas when an applicant has previously lived outside the UK for a period of more than three continuous months to properly assess risk and support the decision making process.
Criminal record checks for PHV operators and staff
PH Operators should also expect more rigorous checks. The draft statutory guidance has recommended basic disclosure checks for licensed operators as a minimum standard (including overseas convictions checks). Additionally, the statutory guidance has suggested that licensing authorities should request that, as a condition of granting an operator licence, a register of all staff that will take bookings or dispatch vehicles is kept and the operator should be required to evidence that they have had sight of a Basic DBS check on all individuals listed.
The trade should expect the imposition of mandatory safeguarding and equality awareness training. The government has been consistently indicating the importance of safeguarding and equality awareness training for the licensed trade. There is no indication from the government that it will set the training requirements/content and so mandatory training courses will be developed locally.
The draft statutory guidance has upheld the merits of licensing authorities imposing mandatory CCTV requirements by way of licence conditions. The jury is still out on this proposal since the Camera Surveillance Commissioner recently argued that a more proportionate approach should be adopted rather than blanket policies. Having said that, there is no doubt that more licensing authorities will seek to impose CCTV requirements on licence holders.
Cross border enforcement
Licensees should expect to see more collaborative approaches to enforcement powers. At the moment licensing authorities cannot formally enforce against drivers and drivers not licensed by them. I expect more formal agreements to be adopted that will sub-delegate enforcement to other council for example in places where cross-border hiring is a particular problem.
In this article I highlighted some of the changes the licensed trade should expect, and prepare for, in the forthcoming DfT taxi and private hire licensing statutory guidance.
Notwithstanding the impending changes, licensees should remember their statutory appeal rights will not be affected. Taxi Defence Barristers can provide advice and assistance to the licensed trade to ensure they are compliant with any new requirements on them as a result of the new statutory guidance and, where necessary, can assist in appeals.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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