PAPER B2

Purpose: For Decision

Committee: LICENSING PANEL

Date: 8 JUNE 2004

Title: APPEAL AGAINST THE HACKNEY CARRIAGE & PRIVATE HIRE VEHICLE LICENCE CONDITIONS WHICH PREVENT THE LICENSING OF A VOLKSWAGEN CARAVELLE WITH WHEELCHAIR ACCESS FOR UP TO A MAXIMUM OF 8 PASSENGERS

REPORT OF THE HEAD OF CONSUMER PROTECTION

PURPOSE/REASON

1. To consider an appeal against the Licensing Officer’s refusal to grant a Hackney Carriage or Private Hire Vehicle licence due to the fact that the vehicle does not comply with the Council’s licence conditions.

DETAILS

2. A request has been received from the company “Bernard Mansell”, Media House, St James Mill Road, Northampton for the Council to consider licensing a Volkswagen Caravelle for up to a maximum of 8 passengers. It was refused by the Council’s Licensing Officer as the vehicle does not comply with the Council’s Hackney Carriage or Private Hire Vehicle licence conditions for 6, 7 & 8 seater vehicles in that not all the seats face the front of the vehicle, and that it has tip-up seats.

LOCATION & SITE CHARACTERISTICS

3. The vehicle will be available at the meeting for Panel Members to view.

RELEVANT HISTORY

4. The Licensing Panel have waived the licence conditions previously with regard to condition no. 15 (d) and (e) as below. Rear facing seats have been approved for a Mercedes Vito.

5. This type of vehicle could be licensed by other Councils, however, this Panel have had regard to safe ingress and egress of passengers in an emergency when considering previous applications.

COUNCIL POLICY

6. The policy is by way of conditions attached to the licence and the relevant condition is set out below:

“15. With regard to the licensing of 6, 7 and 8 seater vehicles the following applies:-

(a) Passenger entry and exit doors should be on the nearside of the vehicle only.

(b) No passenger entry or exit doors will be permitted at the rear or on the offside of the vehicle except emergency exits and wheelchair access.

(c) There must be easy access from the entry and exit doors to all seats.

(d) Tip-up seats are not to be permitted in any vehicle except purpose built limousines.

(e) All passenger seating shall face the front of the vehicle.

(f) Emergency exits must be clearly marked as such.

7. The vehicle does not comply with (d) & (e) above.

8. The wheelchair accessible policy is set out below:-

i. That the only acceptable definition of suitably adapted vehicle is a wheelchair accessible vehicle which has 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.

FORMAL CONSULTATION

9. The Police have no comments to make on the application.

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

11. The Crime & Disorder Unit has not commented on the application.

THIRD PARTY REPRESENTATIONS

12. Not applicable to this matter.

FINANCIAL IMPLICATIONS

13. 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

14. Legislation governing the licensing of Hackney Carriage & Private Hire Vehicles is set out below:-

Town Police Clauses Act 1847

Local Government (Miscellaneous Provisions) Act 1976 Part II

Transport Act 1985

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

IMPLICATIONS UNDER THE CRIME AND DISORDER ACT 1998

16. Without prejudice to any other obligation imposed on it, it shall be the duty of each authority 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.

IMPLICATIONS UNDER THE HUMAN RIGHTS ACT

17. 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 the Panel is sufficient to make that the Council’s licensing system is 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 “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”.

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

18. To refuse to grant a Hackney Carriage or Private Hire licence for the vehicle as it fails to comply with the Council’s standard vehicle licence conditions as stated.

19. To grant a Hackney Carriage or Private Hire vehicle licence by varying the licence conditions for this vehicle only, subject to the vehicle passing the Council’s Compliance Test and carrying not more than the number of passengers to be determined by the Licensing Panel.

20. To permit wheelchair access and egress by the near side rear door only, by attaching a licence condition to this effect.

EVALUATION/RISK MANAGEMENT

21. Officers believe that the amount of space for wheelchair entry or exit from the rear door by the use of a ramp would take up extra rank space. As a Hackney Carriage can be flagged down away from the rank, the setting out of a rear ramp and loading or unloading of passengers on a main road could be seen as an unacceptable risk. To overcome this, it could be stipulated that the entry or exit of wheelchairs is limited to the nearside rear door only. The maximum number of passengers for which the vehicle could be licensed would be eight.

22. Officers have considered the implications under the Human Rights Act 1998, Local Government (Miscellaneous Provisions) Act 1976 Part II and Section 16 of the Transport Act 1985 and Town Police Clauses Act 1847.

23. This matter has been discussed with the Compliance & Risk Management Section and it is believed it would be a proprietor’s responsibility to carry out their own risk assessment in relation to their own or their employees’ safety.

24. 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.

RECOMMENDATIONS

25. To refuse the application as the vehicle does not comply with the Council’s licence conditions.

APPENDICES ATTACHED

26. None

BACKGROUND PAPERS

27. Checklist for this report in relation to the Human Rights Act, Wednesbury principles, and proportionality.

Contact point: John Murphy, F 823152

ROB OWEN

Head of Consumer Protection