Taxi driver fails in legal challenge against ‘unfair’ mixed fleet vehicle policy

A taxi driver who claimed that a Scottish local authority’s “mixed fleet” policy was “unfair” after the council refused his application to vary his licence by switching his wheelchair accessible vehicle to a cheaper saloon car has had his appeal dismissed.

 

It was argued that there was “no economic fairness” in the policy and that in refusing the application the licensing committee exercised its discretion “unreasonably”, but a sheriff ruled that the council did not err in law in reaching their decision.

 

Dundee Sheriff Court was told that in May 2016 the purser Thorstien Thoresen, 66, who has held a taxi licence since 2004, applied to alter the conditions of licence by allowing his current WAV to be substituted by a saloon-type vehicle because he could not afford to operate the the more expensive taxi.

 

On 1 September 2016 Dundee City Council’s licensing committee refused the application and subsequently issued a statement of reasons to that effect, but the pursuer appealed on the grounds that the defenders “erred in law” and “exercised their discretion in an unreasonable manner”.

 

 

Sheriff George Way was told that prior to November 2003 the majority of standard taxi licences granted by the defenders were saloon cars, but after that date it was a condition that all new licences should be WAVs.

 

Following a public consultation in 2012 after the introduction of the public sector equality duty imposed by the Equality Act 2010, the policy was refined and now aims for a mixed fleet comprising around 60% WAV and 40% saloon cars, which allows for WAVs to service the needs of certain disabled passengers, but recognises that some elderly and ambulant disabled passengers find saloons easier to access.

 

But counsel for the pursuer, Adrian Stalker, submitted that when the council adopted the new policy it accepted in order for a mixed fleet policy to operate fairly, it would have to incorporate a mechanism to address the “inequality” caused by allowing some operators to place on service less expensive saloon cars, as opposed to more expensive WAVs.

 

However, no economic fairness mechanism had been introduced and there was no indication in the statement of reasons issued on 12 September 2016 that the committee recognised that an issue of “economic unfairness” to operators such as the pursuer actually existed.

 

It was argued that in operating the mixed fleet policy “unfairly” and as a consequence refusing the pursuer’s application for variation of his licence, the defenders exercised their discretion “unreasonably”.

 

 

In response, counsel for the defenders Scott Blair submitted that the pursuers were seeking to argue that the policy was unfair, but a licensing appeal by way of summary application under paragraph 18 of schedule 1 to the Civic Government (Scotland) Act 1982 was limited to four grounds - only two of which were relied on in this case. 

 

The sheriff court did not have jurisdiction to determine whether in exercising a function which was driven by the duty imposed by the 2010 Act, the defenders had acted unlawfully or unreasonably - a challenge to the policy itself ought to be made by way of a petition for judicial review.

 

It was also argued that the case presented on the merits of the position of the pursuer in the appeal was “wholly different” from the case presented to the defenders in the original application.

 

Further, Mr Blair submitted the statement of reasons were “adequate” in that it was evident that the committee did listed to the pursuer’s case for an exception to policy and did consider the application for variation on the merits, but they did not agree the policy was unfair and that it should no longer be applied. 

 

In order to succeed in an appeal in terms of paragraph 18 of Schedule 1 of the Act, the pursuer required to demonstrated that the defenders: (a) erred in law; (b) based their decision on any incorrect material fact; (c) acted contrary to natural justice; or (d) exercise their discretion in an unreasonable manner.

 

The pursuer did not rely upon either (b) or (c) but did rely upon (a) and (d).

 

 

Refusing the appeal, the sheriff ruled that there the defenders had neither erred in law nor failed to exercise their discretion in an unreasonable manner.

 

In a written judgment, Sheriff Way said: “First, I note that, in relation to limb (a), the specification of the precise error of law that is alleged is somewhat lacking. Moreover, I accept Mr Blair’s submissions to the effect that the nature of these appeals is neither a rehearing at large, nor an opportunity to impugn the defenders’ policies per se. An attack on the adoption of a particular policy is, in my view, more appropriate to be raised by way of petition for judicial review. 

 

“These proceedings are designed to provide a check on the decision making process followed by the defenders’ licensing committees. Mr Stalker’s submissions, on this point, are properly directed at the council’s failings with regard to the policy not, in my opinion, to the operation of it by the relevant committee. I prefer the submissions of Mr Blair and, therefore, I am content to find that the defenders did not err in law during their consideration of the pursuer’s application to vary his licence.”

 

In relation to limb (d), the sheriff observed that while the pursuer’s argument was “logically valid” it did not overcome the “high bar” to succeed, namely whether the decision complained of was one that “no reasonable board, having taken into account all the relevant circumstances, could have adopted”.

 

Sheriff Way added: “It is not enough that this Court might disagree with the conclusion reached by the committee on a particular application. I, again, prefer the submissions of the defenders on this point. This is not to say that I would have necessarily come to the same conclusion on these facts but that is not the issue here. 

 

“It seems to me that that they had all the relevant facts and circumstances before them. There is nothing to suggest that they did not reflect upon them, apply their minds to the circumstances and the arguments for and against, before they came to a conclusion. 

 

“The committee, in this case, have set out their reasons for reaching the conclusion that they did, in a straightforward manner. They had regard to the Council policy, the pursuer’s personal circumstances, weighed up the arguments and resolved to refuse the variation. I can find no evidence that persuades me that the committee did not act in a rational and fair way towards the applicant. 

 

“The decision was not capricious or arbitrary. I simply cannot hold that the high bar has been crossed, so as to find that no reasonable committee could have reached the decision that the defenders did in this case. The appeal, accordingly fails on both grounds.”