The Covid-19 outbreak is unprecedented. It is an unfortunate situation for hackney carriage and private hire licence holders who will inevitably be most severely affected by this.  Whilst the Government has announced measures to mitigate the impact, most licence holders are self-employed and do not enjoy the same benefits as employees, for example.

In this article I hope to provide some guidance and answers to the most common questions asked by the trade during this time.

School contracts

There has been a lot of questions regarding the position with regards to school contracts.  Understandably this is a very worrying time for hackney carriage and private hire drivers since they generally have less employment and income protection.

There is no general contract provision that will apply to school contracts around the country and each local authority will have its own terms and conditions.  It is therefore difficult to give advice and assurances to the trade in respect of this.

However, a number of general observations and comments will hopefully assist:

  1. Licence holders need to carefully check the working of their contract to see if there is any provision for compensation or paid notice periods.
  2. Business continuity/interruption insurance could fill the gap left by the cancellation of school contracts. Licence holder should take advice on any insurance cover they may have.
  3. Given the circumstances we currently face, it might be that local authorities will transfer those contracts from transporting school children to children of school workers, front line staff or delivery of food packages to elderly/vulnerable. In other words, school transport contracts could be commandeered the contracts for other local government purposes.  Speak to your contract provider about this.
  4. Licence holders who have had contracts cancelled without any other options or insurance would likely need to take advantage of the Government’s relief proposals for small business facing disruption due to Covid-19.

Refusing fares

In law, there are essentially two options available to drivers:

Taxi journeys that start and end in the area where that driver is licensed (controlled district) cannot be refused without reasonable excuse.

Taxi journeys that start in the controlled district but end outside of that area can be refused as there is no statutory duty on the driver to accept a booking outside of the controlled district.

S.53 of the Town Police Clauses Act 1847 states:

“A driver of a hackney carriage standing at any of the stands for hackney carriages appointed by the commissioners, or in any street, who refuses or neglects, without reasonable excuse, to drive such carriage to any place within the prescribed distance, or the distance to be appointed by any byelaw of the commissioners, not exceeding the prescribed distance to which he is directed to drive by the person hiring or wishing to hire such carriage, shall for every such offence be liable to a penalty not exceeding level 2 on the standard scale.”

A driver of a taxi (or hackney carriage) can only refuse to carry passengers within a controlled district if he has reasonable excuse to do so. What constitutes “reasonable excuse” is ultimately a matter for a court of law to determine.

In reference to the coronavirus, what is certain is that fares cannot be refused simply based on the nationality or ethnicity of a passenger.

It would arguably be reasonable if they, or any other person, appears to be presenting symptoms.  It can, in practical terms, of course be hard to make this decision particularly as taxi drivers are not medical experts.

What could also be relevant is acting on national advice.  For example, a taxi driver may feel more comfortable with carrying a single person or perhaps a couple as opposed to a large group.

The legal test and therefore overriding consideration remains whether the decision to refuse the fare would constitute a “reasonable excuse”.  Under the circumstances it would be very difficult for a licensing authority to show beyond reasonable doubt that a cautious approach or one based on official advice was unreasonable unless it is clear that the decision to refuse the fare was purely based on the passengers nationality or ethnicity.

Difficulties with complying with requirements

The impact of the Covid-19 outbreak has, in some cases very suddenly, thrown up difficulties for hackney carriage and private hire applicants and licence holders.

Medicals

We have been made aware that GP surgeries and other providers have been cancelling appointments for undertaking medical reports for hackney carriage and private hire applicants and licence holders.

The fit and proper assessment for licence holders and applicants include the requirement for medical fitness.  This is normally a policy requirement and without satisfying this requirement, licensing authorities will not grant licences.

Where then does that leave hackney carriage and private hire licence holder or applicants?  In strict legal terms – and perhaps under more normal circumstances – there would be a strict requirement to comply with policy requirements.  However, we are currently not facing normal circumstances.

Until such as time as Government issues further guidance on the matter, it will be down to each licensing authority to set its own course.  We expect that existing hackney carriage and private hire licence holders will either have medical requirements temporarily suspended or be required to complete some form of self-declaration as an alternative.  Those that are most likely to be most disadvantaged are new applicants.  It is unlikely that new licences will be granted without the medical requirements being met.

Other policy requirements

As the impact of the outbreak worsens, there will be other policy and licensing requirements that will pose difficulties for the trade to comply with.

The general principles discussed above will apply to other policy requirements too.  We would advise hackney carriage and private hire licence holders and applicants facing difficulties with complying with policy requirements to:

  • Seek advice from their own licensing authority on contingency or business continuity plans
  • Take advice from unions or associations that you may be a member of
  • It might be in more extreme cases that licences are refused, suspended or revoked. In these cases, it is important to seek legal advice without delay.

Licensing hearings & decision making

Licensing hearings are in important democratic licensing process promoting fairness and transparency in decision making.  At the time of writing (20/03/2020), there has been no official advice from the Government to cease licensing hearings.  This will no doubt change and this too will have an impact on licence holders and applications.  A number of observations that I would like to make in reference to this:

  1. I anticipate more decision-making powers will be delegated to licensing officers as some decisions will need to be made more expediently under the current circumstances. Whist the circumstances may justify more extreme measures, it cannot be at the expense of proper process, fairness, transparency and appropriate consultation.
  2. Delegating decision making powers to officer should, in my view, be the last resort as there are other alternatives open to local authorities such as extra precautions and remote hearings via video link for example.
  3. Despite the current circumstances we are facing, it is important that people’s rights are protected including the right to justice and fairness.

Any hackney carriage or private hire licence holder or applicant who may have had their rights denied can contact Taxi Defence Barristers for advice.

Weekly Rent

We have also heard reports of private hire operators continuing to charge licensed drivers weekly rents despite a drop off in work or in some cases drivers not working at all.

Licensed drivers will most likely be subject to some form of contractual arrangements that sets out the terms of the agreement between the driver and the operator.  Licensed drivers should consult their contracts or speak to their operators about this.  There is general acceptance that normal rules of business are suspended and as such the agreement between operators and drivers should be flexible and lenient.

However, ultimately the contractual terms will define the terms of the arrangement.  Whilst strictly speaking licensing authorities cannot intervene drivers can approach their licensing authority for advice.

Appeals

At the time of writing, the advice issued by the Lord Chief Justice urges hearings to continue remotely including civil hearings such as licensing.

In his communication he said:

  • The default position now in all jurisdictions must be that hearings should be conducted with one, more than one or all participants attending remotely.
  • I would urge all before agreeing to adjourn any hearing to use available time to explore with the parties the possibility for compromise.
  • Final hearings and hearings with contested evidence very shortly will inevitably be conducted using technology. Otherwise, there will be no hearings and access to justice will become a mirage. Even now we have to be thinking about the inevitable backlogs and delays that are building in the system and will build to an intolerable level if too much court business is simply adjourned.

Is would appear therefore that licensing appeals should go ahead as normal. It is however anticipated that the advice will change and criminal cases will take providence over civil ones.  This means that the time will come when the courts will postpone licensing hearings and appeals.

Since there is no clear indication of how long the current outbreak will last, postponing for example, licensing hearings, could have a significant impact on the time taxi and private hire licence holders and particularly applicants will have to wait before their cases will be heard.

One important factor may be your legal representative’s ability to conduct licensing hearings remotely.  Taxi Defence Barristers are fully setup to do this and we will work to ensure we can get hearings conducted in as an expedient manner as possible under the circumstances.

Stephen McCaffrey

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

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