The current pandemic and social distancing restrictions does not absolve licensed drivers from their duties under the Equality Act.  The same duties and responsibilities that applied prior to the pandemic continues to apply today including duty to provide reasonable assistance to people with disabilities, duty to carry assistance dogs and ensuring you are not discriminating against any person through for example imposing additional charges etc. 

Clearly complying with social distancing rules is impossible under these circumstances particularly where you provide assistance to, for example, a wheelchair user or elderly passenger.  Certain offences under the Equality Act does not make provision for “reasonable excuse” and so licensed drivers must exercise caution to ensure they comply with the statutory equality duties. 

In this article I want to look at the statutory equality duties that are placed on hackney carriage (taxi) and PHV drivers and whether social distancing measures can be a reasonable excuse for not complying with these duties. 

Passengers in wheelchairs

Under s. 165 of the Equality Act, the driver of a “designated” taxi is under duty to do the following:

  1. to carry the passenger while in the wheelchair;
  2. not to make any additional charge for doing so;
  3. if the passenger chooses to sit in a passenger seat, to carry the wheelchair;
  4. to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;
  5. to give the passenger such mobility assistance as is reasonably required.

“Mobility assistance” is defined under subsection 5 as:

  1. to enable the passenger to get into or out of the vehicle;
  2. if the passenger wishes to remain in the wheelchair, to enable the passenger to get into and out of the vehicle while in the wheelchair;
  3. to load the passenger’s luggage into or out of the vehicle;
  4. if the passenger does not wish to remain in the wheelchair, to load the wheelchair into or out of the vehicle.

Under subsection 7 it is an offence for a hackney carriage driver to not comply with the duties above.  Of note however, subsection 9 makes provision for “a defence for a person charged…to show that at the time of the alleged offence:

  1. the vehicle conformed to the accessibility requirements which applied to it, but
  2. it would not have been possible for the wheelchair to be carried safely in the vehicle.”

There is no authoritative case law on the scope of a defence under subsection (b) i.e. it would not have been possible for the wheelchair to be carried safely in the vehicle.  Under certain circumstance, it is feasible to advance an argument that Covid19 and/or social distancing rules could satisfy the defence provisions.

For example, a passenger displaying symptoms or refusing to wear a mask in your hackney carriage could be reasonable defence.

Each case will ultimately turn on its own circumstances and merits.  The point here is that there is a defence for drivers charged with an offence.  Please contact us if you are facing legal difficulties with your licence or facing charges relating to your equality duties.

Assistance dogs in taxis & PHVs

Unlike assistance with wheelchair users, there is no similar defence for offences for not allowing assistance dogs or imposing an additional charge.

Under section 168 & 170 of the Equality Act, the driver of a taxi or PHV which has been hired

  1. by or for a disabled person who is accompanied by an assistance dog, or
  2. by another person who wishes to be accompanied by a disabled person with an assistance dog

must

  1. carry the disabled person’s dog and allow it to remain with that person;
  2. not make any additional charge for doing so.

The driver of a taxi or PHV commits an offence by failing to comply with this duty.

This section is particularly difficult for licensed drivers because, the circumstances above that might lead a driver to take a caution approach to carrying a passenger (i.e. a passenger displaying symptoms or refusing to wear a mask) might also be relevant to a passenger with an assistance dog.  However, there is no provision for a defence under sections 168 or 170.

There is also no authoritative case law on the scope of offences under these sections so there is no guidance on the likelihood of successful prosecutions in the context of Covid19.

Please contact us if you are facing legal difficulties with your licence or facing charges relating to your equality duties.

Stephen McCaffrey

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

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