As the Covid-19 pandemic continues to affect the licensed hackney carriage and private hire trades, we look at some legal considerations of the most common issues facing the trade.
Partition screens – legal considerations
Why protective screens?
Social distancing requirements will be part of everyday life for a considerable time to come. If licensed hackney carriage (or taxis) and PHVs want to trade, steps to adhere to Government guidance will be critical.
However, there has to date not been any formal guidance from the Government on the requirement to provide a physical barrier of this type in licensed vehicles. Notwithstanding however, these screens would give the travelling public confidence using hackney carriages and PHVs and perhaps more importantly, protect licensed drivers.
The last point is particularly important because ONS statistics has shown that hackney carriage and private hire drives are at particularly high risk of contracting the coronavirus and unfortunately at particularly high risk of succumbing to the virus.
Do you need permission to install a protective screen in your licensed vehicle?
As with everything in hackney carriage and private hire licensing, each licensing authority will have its own rules. However, it is very likely that every local authority will have some provisions in place to require proprietors of licensed hackney carriage of private hire vehicles to seek permission for material changes to a licensed vehicle.
There is no explicit legislation relating to the need for a proprietor of a licensed hackney carriage of private hire vehicle to seek permission for alternations of this nature.
However, there are wider powers for licensing authorities to suspend, refuse of revoke vehicle licences on the basis of fitness. In particular, sections 60 (Suspension and revocation of vehicle licences) and 68 (68. Fitness of hackney carriages and private hire vehicles) of the Local Government (Miscellaneous Provisions) Act 1976.
There is no legal precedence on the specific issue but the courts have previously ruled that the section 68 power is broad and could include the installation of protective screen without permission or poorly fitted screens, for example.
Aside from specifically licensing legislation, there will be other legal considerations. Any protective screen will need to comply with Construction and Use Regulations and general vehicle roadworthy rules.
Policy and conditions
Although there might not be any specific legal provisions in place, the requirement to seek permission from your licensing authority for material changes is likely to be contained in licensing policy and/or licence conditions.
In addition to specific licensing conditions, there will also be similar, but more general, provisions and requirements contained in licensing policies requiring proprietors to seek permission for the installation of protective screens.
Model Byelaws for Hackney Carriages
It is also worth mentioning the relevance of the Model Byelaws for Hackney Carriages. The byelaws do not place any specific duty on a proprietor in respect of seeking permission it does however contain a number of relevant considerations:
- Section 3(a): The proprietor of a hackney carriage shall provide sufficient means by which any person in the carriage may communicate with the driver.
- Section 3(f): The proprietor of a hackney carriage shall cause the fittings and furniture generally to be kept in a clean condition, well maintained and in every way fit for public service.
- Section 4(e): the taximeter shall be so placed that all letters and figures on the face thereof are at all times plainly visible to any person being conveyed in the carriage, and for that purpose the letters and figures shall be capable of being suitably illuminated during any period of hiring
Refusing fares – is a mask enough?
Since the Government announced additional public health measures in England and Wales, there has been much debate about the requirement to wear masks in hackney carriages and PHVs and whether this might be reasonable grounds for refusing a fare.
The issue of refusing fares is restricted to use of hackney carriages more than it is for PHVs. This is because a private hire operator has the discretion to turn down a booking request whereas hackney carriages plying for hire is expressly prohibited from doing so in law without reasonable excuse.
The question therefore in the context of the current pandemic is whether it is reasonable for a hackney carriage diver to refuse a fare if passengers are not wearing a mask.
S.53 of the Town Police Clauses Act 1847 (applies to both England & Wales) states in relation to hackney carriages:
“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.”
It is clear in law therefore that:
- For hackney carriages, journeys that start and end in the area where that driver is licensed (controlled district), a fare cannot be refused without reasonable excuse.
- For hackney carriages journeys that start in the controlled district but end outside of that area, a fare can be refused as there is no statutory duty on the driver to accept a booking outside of the controlled district.
The legal test is whether the fare was refused with a reasonable excuse. What constitutes a “reasonable” excuse will ultimately be a matter for the courts to decide.
Public health advice
Certainly, what would be material factors in the particular context (i.e. Covid19 and the wearing of masks) is what the public health advice was (at the time of the alleged offence) and how this relates to hackney carriages and PHVs.
The Government announced that face coverings will be mandatory on all forms of public transport from 15 June. Note the guidance relates to wearing face covering, not masks.
It is also material that hackney carriages and PHVs are not classed public transport. The Government, in its guidance, has made the separation clear stating: “…travelling by taxis and public transport (for example trains, buses, coaches and ferries).”
The implication is that the requirement to wear face coverings when travelling in hackney carriages is therefore not mandatory. However, more general Government advice is for people to wear face coverings in “enclosed spaces” which clearly applies to hackney carriages and PHVs.
It is clear the advice on face coverings in hackney carriages and PHVs is muddied. A Department for Transport spokesperson is reported to have said:
“Taxis are not included in the mandatory requirements primarily because they are private hire vehicles.
“Taxi drivers have a perspex screen and they can, if they want to, refuse to carry passengers.
“We advise that taxi drivers do follow the guidance but it is not a mandatory requirement as is the case on trains, busses and trams.
“The requirement only is for public transport and taxis can choose to follow the guidance – and we advise they do – but ultimately it is up to them because they have more control over their environment.”
The specific advice for travelling in a hackney carriage includes:
“…follow the advice of the driver. For example, you may be asked to sit in the back left hand seat if travelling alone. You may want to check with your taxi operator before travelling if they have put any additional measures in place.
“You should wear a face covering in an enclosed space where social distancing isn’t possible and where you will come into contact with people you do not normally meet.”
As I mentioned, what constitutes a “reasonable” excuse will ultimately be a matter for the courts to decide.
In making a judgement on this, the courts will need to consider all the facts. Each case will need to be determined on its merits but there are broad themes that is likely to apply to most cases of this type, including:
- The official Government advice at the time and whether this was being followed;
- It is material that official statistics suggest hackney carriage drivers are at an increased risk of dying as a result of falling ill with COVID-19;
- Precautions taken by the licensed driver such as partition screens and other measures;
- Whether the passenger was willing to comply with instructions from the licensed driver; and
- Passengers were displaying visible symptoms.
There will not be a one-size-fits-all approach to this. However, drivers can protect themselves against enforcement action through proper due diligence to ensure they can respond to any complaints in a robust and clear manner.
As always, Taxi Defence Barristers can assist licence holders with advice and representation when faced with legal and enforcement difficulties.
Fees & refunds – what you need to know
There have been media reports of a number of trade associations and licence holders demanding an immediate reduction in fees and refunds. The requests have been made on the basis that hackney carriage and private hire licensing workload would have seen a significant downturn.
The way the law works on fee setting does not require licensing authorities to take immediate action on fees. Some have taken steps to defer payments, but strictly hackney carriage and private hire fees should be set based on an annual basis taking in account that year’s costs. In year changes are very rare.
Licence holders around the country should expect the lower demand this year to be reflected in the 21/22 fees. We understand that the financial burden on the trade is immediate however but unfortunately the law, as it currently stands, does not support fee reductions in this way.
You may be interested to read my February PHTM article on licensing fees for more information (https://www.taxidefencebarristers.co.uk/2019/02/01/taxi-private-hire-fees/).
And finally, equality duty
A final but very important point, 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. Most 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.
Regulatory defence barrister specialising in taxi and private hire licensing law, appeals and defence.
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