PAPER B3

Purpose: For Decision

Committee: LICENSING PANEL

Date: 13 JANUARY 2004

Title: APPLICATION TO EXCHANGE A SWIVEL SEAT ‘D’ PLATE LICENCE FOR A STANDARD HACKNEY CARRIAGE VEHICLE LICENCE FOR THE FORMER URBAN DISTRICT OF COWES

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider a request to remove the Council’s licence condition on an existing D plate licence for a vehicle, which has the benefit of a swivel seat for the disabled. If granted this would result in the applicant supplying a vehicle for a Hackney Carriage Vehicle licence, which would not have any disabled facilities for the former Urban District of Cowes.

DETAILS OF THE APPLICATION

2. A request has been received from Mr M White, Amar Taxis, 72 The Mall, Newport, Isle of Wight to replace his existing ‘D’ Plate licence, currently issued for a Ford Mondeo, with a Hackney Carriage Vehicle which does not have a swivel seat or any other facility for the disabled (Appendix 1). The applicant has been requested to attend to present his application and answer any questions members may wish to ask.

LOCATION & SITE CHARACTERISTICS

3. The Hackney Carriage is licensed to ply for hire in the former Urban District of Cowes and has the ability to assist in the transportation of persons with certain disabilities by the use of a swivel seat fitted to the front nearside passenger compartment.

4. Hackney Carriages, which supply this facility, have been given a Council Identity Plate number beginning with the prefix “D”.

5. The applicant’s vehicle will be available for the Panel Members to view, if they so wish.

RELEVANT HISTORY

6. The ‘D’ plate Hackney Carriage Vehicle licence was granted to Mr M White on 9 October 2001.

7. Members will be aware that a previous request from another proprietor to remove the swivel seat condition was granted at the meeting of the Licensing Panel on 19 September 2003. The proprietor replaced the 10 year old vehicle that was licensed to a 5 year old vehicle.

8. Members will also be aware that another request to remove the condition was refused at the Licensing Panel on 1 December 2003.

9. In 2001 the Council were looking to promote a mixed type of Hackney Carriage fleet with varying facilities for the disabled, one of which was:-

any vehicle which has been adapted or modified to provide improved access for disabled persons together with storage and carry capacity for any equipment that they may have (eg wheelchair) and which does not preclude the carriage of normal quantities of luggage and personal belongings.

10. After discussions with the Isle of Wight Taxi Proprietors Association a decision was taken by the Portfolio Holder for Transport on 22 February 2002 which stopped the issue of these ‘D’ plates as new Hackney Carriage Vehicle licences.

11. The policy was then amended to state that all new Hackney Carriage Vehicle licences had to be wheelchair accessible.

COUNCIL POLICY

12. Council policy in relation to the 2001 decision to grant new Hackney Carriage Vehicle licences to Proprietors who produced suitably adapted vehicles is that licences only relate to the vehicle in question and cannot be transferred to any other vehicle other than a replacement suitably adapted vehicle.

13. Should the proprietor not wish to provide this facility the licence should be returned to the Council.

14. The Council’s wheelchair accessible vehicles policy of the 22 February 2002 is set out below:-

“Any new Hackney Carriages have to be wheelchair accessible vehicles which have a British National Type-Approval certificate from the Vehicle Certification Agency demonstrating that the vehicle is safe and complies with the M1 standards for taxis. Passengers should remain seated in their wheelchairs and either be pushed or hydraulically lifted, not manually lifted into the vehicle, and be secured and transported safely within the passenger compartment of the vehicle. The policy does not apply to the transfer of existing licences.”

15. There is no policy on exchange of Hackney Carriage Vehicle licences from a ‘D’ plate to a standard Hackney Carriage licence as these licences are only issued as long as the proprietor provides the facility for the disabled.

FORMAL CONSULTATION

16. The police have no comments to make on the application.

17. The Principal Road Safety Officer has no comments to make on the application.

18. The Crime & Disorder Unit have no comments to make on the application.

THIRD PARTY REPRESENTATIONS

19. The Isle of Wight Taxi Proprietors Association comments are set out at Appendix 2.

FINANCIAL IMPLICATIONS

20. Broadly, Council expenditure on Licensing matters and in particular, those which are administered and enforced through Consumer Protection, balances income received from licence fees.

LEGAL IMPLICATIONS

21. The legislation governing the licensing of Hackney Carriages is set out below

· Town Police Clauses Act 1847 Section 37

(A district council) may from time to time licence to ply for hire within the prescribed distance, or if no distance is prescribed, within 5 miles from the General Post Office of the city, town or place to which the special Act refers, (which in that case shall be deemed the prescribed distance) hackney carriages of any kind or description adapted to the carriage of persons.

· Local Government (Miscellaneous Provisions) Act 1976 Part II

(a) Section 47 permits the Council to attach conditions to Hackney Carriage Vehicle licences. The Council’s policies on provision of Hackney Carriage Vehicles suitable for the disabled is set out earlier in the report. Such policies are clearly licence conditions which the Council are entitled to attach (Regina v Manchester City Council - QBD 1989).

· Transport Act 1985 Section 16

The provisions of the Town Police Clauses Act 1847 with respect to hackney carriages, as incorporated in any enactment (whenever passed) shall have effect - (a) as if in section 37, the words “such number of” and “as they think fit” were omitted; and

(b) as if they provided that the grant of a licence may be refused, for the purpose of limiting the number of hackney carriages in respect of which licences are granted, if, but only if, the person authorised to grant licences is satisfied that there is no significant demand for the services of hackney carriages (within the area to which the licence would apply) which is unmet.

· Disability Discrimination Act 1995 Part V Public Transport

22. Each application should be considered individually so as to comply with the rules of Natural Justice.

23. In arriving at their decision the Panel will have taken into account all relevant matters; and not taken into account any irrelevant matters.

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

24. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority to which this section applies to exercise its various functions with due regard to the likely effect of the exercise of those functions on, and the need to do all that it reasonably can to prevent, crime and disorder in its area.

25. If the applicant’s request was granted there would appear to be little or no evidence that it would increase crime & disorder on the Island.

26. It could, however, mean that disabled people could be disadvantaged.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

27. Members are advised that this application must be considered against a background of the implications of the Human Rights Act 1998.

There are three convention rights which need to be considered in this context:-

a) Article 6 - Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It has been held that the fact that there is a right of appeal to the magistrates’ court from any decision of the Panel is sufficient to make the Council’s licensing system compliant with the convention rights.

b) Article 8 - Right to respect for private and family life.

Everyone has the right to respect for his private and family life, his home and his correspondence. In the case of article 8 there shall be no interference by a public authority with the exercise of this right except as such in accordance with the law and is necessary on a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder and crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

c) Article 1 of the first protocol – protection of property.

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. In the case of Article 1 of the first protocol it states that “no one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and the general principles of international law. The preceding provisions (of which articles 6 and 8 are but two) shall not however in any way impair the right of the state to enforce such laws as it deems necessary to control the use of the property in accordance with general interest or to secure the payment of taxes or other contributions or penalties”.

Article 1 is particularly relevant to this report as a licence is deemed to be a possession.

d) The Panel needs to be clear as the rights granted and the need to ensure that the reasons given for any interference are proportionate and in accordance with the Council’s legitimate aim.

OPTIONS

28. To grant the Hackney Carriage Vehicle licence as requested by the applicant.

29. To refuse to grant the application.

30. To require the applicant to provide a wheelchair accessible vehicle as a replacement vehicle for the Hackney Carriage Vehicle licence no. D2, within 6 months.

31. Any other reasonable condition deemed necessary to provide the existing service for the disabled.

EVALUATION/RISK MANAGEMENT

32. Officers have considered the implications under the Human Rights Act, Section 16 of the Transport Act 1985 and the Disability Discrimination Act 1995 against the applicants application and supporting documentation.

33. The consequences of granting this application could result in all ‘D’ plate Hackney Carriage Vehicle licence proprietors and wheelchair accessible ‘W’ plate proprietors seeking the same dispensation thus eroding the current facilities for the disabled.

34. Having taken the above into consideration Officers believe that the proprietor should still provide facilities for the disabled to comply with the Council’s existing policy.

35. Insofar as any risk to the Council is concerned, the issue of Crime and Disorder and Human Rights have been evaluated. Any resolution the Panel makes is within its delegated powers.

RECOMMENDATION

36. To refuse to grant the application.

APPENDICES ATTACHED

37. Appendix 1 – Applicant’s letters.

Appendix 2 – IOWTPA comments.

BACKGROUND PAPERS

38. Checklist for this report in relation to the Human Rights Act 1998, Wednesbury Principles and proportionality.

Contact point : John Murphy, F 823152

ROB OWEN

Head of Consumer Protection