Was it ever thus when it comes to legalese. We were going to discuss the subject herein originally on the FAQs page this time, as has happened a couple of times before in recent years. But (a) there was too much to say in the allotted space for FAQs; and (b) in reality, this ditty isn’t so much about FAQ as FFT – Food for Thought.
So what am I on about here? Quite simply, the recurring theme amongst increasing numbers of licensing authorities in respect of putting licence holders out of work because their latest enhanced DBS check didn’t come back before their existing licence could be renewed. We had reports of drivers being thrown out of work over the recent Christmas and New Year festive season – by far the most lucrative part of the year this industry knows – because, despite their having applied to the Disclosure and Barring Service months and weeks previously, their latest record check didn’t arrive back in time. A few guys reportedly even lost their house because they couldn’t maintain their mortgage payments.
Happy Holidays, right? In one or two instances, the councils involved pointed out that because of some technicality, the driver could not have renewed his badge because things “were not straightforward”. But putting those aside, why oh why could the council not have granted the others a temporary badge – as fully allowed under the legislation – so they could get Christmas and New Year under their belt?
We’ll set out the legal stuff first: LGMPA section 61 deals with the cessation of drivers’ licences: (1) “A district council may suspend or revoke or... refuse to renew the licence of a driver of a hackney carriage or a private hire vehicle on any of the following grounds: (a) that he has since the grant of the licence been convicted of an offence involving dishonesty, indecency or violence; or been convicted of an offence under or has failed to comply with [the LGMPA 1976 or 1847 Act]; or (b) any other reasonable cause.”
Oh, and there’s a bit at the end of section 61 which appears also in some eight other sections of the 1976 Act: “Any driver aggrieved by a decision of a district council under this section may appeal to a magistrates’ court.”
Next, it’s worth breaking down the elements of this subsection. But before that happens, it must be made crystal clear that this part of the legislation applies not to new applicants – who have no right of appeal whatever until such time as the council “shall grant” their licence – but only existing licence holders.
Now you may recall a High Court case from October 2015 – Kaivanpor v Sussex Central Justices and Brighton and Hove City Council – which examined the premise of licence revocation. Crucially, this decision totally reversed the burden of proof as regards ‘fit and proper’ as pertains to existing licence holders: “An applicant bore the burden of proof when applying for a licence under [LGMPA 1976 s.51] to show that he was a fit and proper person to hold a licence, but when considering revocation of the licence it was for the local authority... to prove that the applicant was no longer a fit and proper person or that circumstances had changed.”
As the barrister representing Mr Kaivanpor, David Lewis-Hall, said: “If the council is interfering with your right to earn a living, then surely it must be right for them to justify their interference. This is an important ruling as it means that taxi drivers start from a position of innocence in the eyes of the court, rather than having to prove they are ‘not guilty’.” Hold onto these words for a bit; they’re very significant later.
As an aside, the driver in this case, Merrdad Kaivanpor, ultimately had his driver licence reinstated by Brighton Magistrates’ Court... as successfully represented by the same Mr Lewis-Hall. This put the cat amongst the pigeons big style within the local cycling groups, as Mr Kaivanpor was originally tried for colliding with a cyclist and not stopping at the scene. But that is a separate issue, which could indeed fill another edition of this paper.
What we are dealing with here is the concept of the reversal of the burden of proof. Now I can almost see and hear a whole bunch of legal folk jumping up at this point and shouting, “Yes, but the Kaivanpor case only dealt with licence revocation.” OK, if you accept this premise, then we move on to the next of the three negative treatments of driver licences: that of suspension.
We now delve into a legal paper written by Dr Roy Light of St John’s Chambers, Bristol – a very experienced barrister in the field of licensing law generally and taxi licensing specifically. He set out the current practice amongst the majority of licensing authorities: that “councils may come into possession of information that raises concerns [remember that phrase as well] as to whether a person holding a taxi/PHV driver’s licence remains a fit and proper person.
“The practice of a number of councils has been to suspend the driver’s licence under s.61 in order to allow a full investigation into the matter to be conducted and to consider at a later date what action, including revocation, should be taken.
“The decision in R (on the application of Singh) v Cardiff City Council  EWCH 1852 (Admin) now seems to make such an approach unlawful, as Singh J decided that s.61 does not confer a power of interim suspension...So suspension is a sanction and cannot be used as an administrative measure to allow an authority to investigate matters: ‘It is not, as it were a protective or holding power. It is a power of final suspension, as alternative to a power of final revocation.’ So it is a final determination on the fitness and propriety of the driver and, as such, appealable.”
So – briefly summarising Dr Light’s approach, can suspension be used as a punishment? Only if used in a corrective way, rather than a form of retribution, on the basis that retribution is backward looking and revengeful (“eye for an eye” in the council’s view). Far more satisfactory would be, and is, the realm of corrective measures which may entail the driver attending driver training courses or other rehabilitation measures.
That deals with the second arm of dealing negatively with driver licences. Now we get down to the nitty-gritty: refusal to renew. As everyone knows, councils have the power to refuse to renew for all kinds of reasons; these are clearly annotated within s.61, and extended greatly by the all-important phrase, “any reasonable cause”.
The Association has been involved in literally dozens if not hundreds of pleas from drivers where “any reasonable cause” can engulf a plethora of reasons why a driver’s licence should not be renewed. But here’s the thing: those “causes” always involve the driver having transgressed one way or another, either under his own driver licence or (incorrectly in law really, but vicarious liability can never be discounted) his vehicle having had one or more problems. As it was oft said, we’ve never seen a vehicle in the witness box – so they go for the driver or proprietor of the vehicle.
We finally get to the bottom line: refusal to renew a licence because the driver’s DBS has not come back before his existing licence expired. The crux of the matter here is that nobody has committed an offence; nobody has had a complaint lodged at the council about their driving or demeanour; the sheer administrative fact is that their enhanced criminal record check was not back in time.
Reflecting back on the Kaivanpor case on licence revocation, his barrister said: “If the council is interfering with your right to earn a living, then surely it must be right for them to justify their interference. This is an important ruling as it means that taxi drivers start from a position of innocence in the eyes of the court, rather than having to prove they are ‘not guilty’.”
Then going back to Dr Light’s dissertation on suspension: “Councils may come into possession of information that raises concerns as to whether a person holding a taxi/PHV driver’s licence remains a fit and proper person.”
It cannot be stressed fervently enough: with the refusal to renew a licence due to the DBS not being back in time, neither of these fit and proper realms is challenged because there is no evidence of anything having transpired. The council just says, “Tough – your paperwork is not back – offsky.” What happened to the driver’s “position of innocence”? And there has been no “possession of information that raises concerns”.
In the Kaivanpor sense, these councils have not proven that the renewal applicant is NOT a fit and proper person. So where is their right to refuse to renew without evidence?
Now we look at the council’s actual practical stance in these circumstances. Last April this Association dove in head-first to challenge one council’s position, as (believe it or not) this particular council still issues licences and renewals on the same date every year for everybody. At that point, some 26 drivers were thrown out of work because their DBS hadn’t been returned in time.
Having been provided with our members’ backgrounds, and the fact that most of them had not even received so much as a parking ticket, let alone a complaint to the council from any passenger, we approached the council head-on saying that under the LGMPA they could issue a temporary badge for any period of time that would be applicable: a month, a week, a day even, to allow these drivers to continue to work. The council said they could not do this... based on the recent experiences of Rotherham. That particular debacle has provided more ways out of a maze for licensing authorities than you’ve had hot dinners.
So then we took a more hard-line approach, based again on s.61 where it says: “Where a district council suspend, revoke or refuse to renew any licence under this section they shall [not may, shall] give to the driver notice of the grounds on which... they have refused to renew such licence within fourteen days of such... refusal and the driver shall on demand return to the district council the driver’s badge issued to him in accordance with section 54 of this Act.”
We said to this council, and to many others since: “OK, so you’ve demanded these guys’ badges back, and they’ve handed them back. Where is their notice of refusal to renew? Where is their letter in writing? Have you notified them of their right of appeal?” The answer we got from this particular council was: “We’ve not refused to renew their licence... we’ve just, um, not renewed the licence, so we don’t have to give them a notice.”
Eh? Pardon? The dictionary definition of “refuse” includes “withhold acceptance of or consent to”; “indicate unwillingness”; “not grant (a request) made by a person”. The definition of “renew” includes “restore to the original state”; “resupply”; “replace”, “resume after an interruption”. No matter how you slice it, these councils have withheld acceptance of or consent to restore to the original state these drivers’ livelihoods, never mind “resume after an interruption”.
This brings in the drivers’ right of appeal, which of course is denied without the requisite notice issued to them. With such notice in writing they could have appealed to the Magistrates’ Court against THE DECISION of the council, and carried on working under LGMPA section 77. But of course because the drivers were obliged to hand back their badges, they could not have carried on working anyway. It’s a lose-lose situation for the driver, but the council wins.
Can this be regarded as revengeful, or “eye for an eye” on the part of the council? That depends on a lot of factors, not least of which often is personality clash. But we’ll not go there...
Let us instead consider the interruption of the licence in real terms. Firstly, the driver is out of work; that’s the obvious consequence. Not so obvious is the fact that many councils have taken the decision not to renew the licence in the absence of the DBS even after the full licence renewal application has gone in, including all the forms and significantly, the application fee. Ker-ching.
More significantly, many of these drivers have been informed that theirs must be treated as a brand-new application for a licence – thus having to jump through all the other hoops as do new applicants: medical, topographical test, the works – with the inherent additional expense. More ker-ching.
Hands up, those who will chip in and shout that DBS applicants can now pay the £13 to receive regular on-line updates on their record check; and also those members of DBS staff who shout that the delays are not down to the DBS but to the local police checks. The on-line check does not, we understand, bypass the requisite police checks. And if the buck stops with the police, as we’ve seen through many DBS checks ourselves where they get to Stage Four (police) and come to a grinding halt, then what can be done about this?
Be that as it may, in conclusion the fact is that councils have the power to issue a temporary badge for any period of time they wish. If they are worried about an applicant doing a naughty before his DBS comes back, or that the DBS shows up a “change of circumstances” (from the Kaivanpor case), then the council is fully within its rights to suspend or revoke based on solid evidence.
But in the meantime, why can’t councils take a page out of Knowsley’s book, for example, and issue the temporary badge on the basis of the applicant having signed a self-declaration that his circumstances haven’t changed. As set out by the winning barrister Mr David Lewis-Hall in the Kaivanpor case, “This is an important ruling as it means that taxi drivers start from a position of innocence in the eyes of the court, rather than having to prove they are ‘not guilty’.”
How very refreshing. And how very user-friendly. As always, we would be most appreciative of any readers’ views and/or experience in this matter... you know where to get in touch.
Until next time, sayonara.