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October 06, 2018 at 03:24AM https://ift.tt/2ufVjKI Stephen McCaffrey THESE POSTS ARE NOT OUR ENDORSEMENT
Clean Air and Ultra Low Emission Zones
In 2015, the UK Government revealed plans to improve air quality in cities with the introduction of Clean Air Zones, some to be operational by next year. A Clean Air Zone is an area in which a local authority has brought measures into place to improve the air quality. These measures can include a range of actions including charging polluting vehicles, including taxis and private hire vehicles, to enter such a zone or prohibiting certain types of vehicles all together.
More recently, Transport for London approved the creation of an Ultra Low Emission Zone in London effective from May 2019. The London zone will charge drivers a daily rate for entering the zone unless their vehicles, agains including licensed vehicles, meet new, tighter exhaust emission standards.
Whilst these zones are confined to certain urban areas at the moment, Clean Air Zones are part of the Government’s wider Air Quality Plan, which aims to improve air quality and address sources of pollution. It is therefore likely that more of these zones will be implemented around the country.
The increase of Clean Air and Ultra Low Emission Zones around the country will inevitably affect the majority of private hire and taxi licence holders. In towns and cities where there are no such zones, it is likely that longer journeys undertaken by taxi and private hire vehicles (i.e. outside their own controlled district) will at some point enter such a zone.
They way Clean Air and Ultra Low Emission Zones operate may cause taxi and private hire licence holders some difficulty in relation to their ability to strictly comply with certain statutory obligations that are placed upon them. The trade therefore needs to be aware of these to protect themselves from complaints and potential enforcement action.
Equality Act 2010
The Equality Act 2010 places a number of statutory duties on drivers of licensed vehicles in respect of their duties towards certain categories of people with disabilities. Section 165 of the 2010 Act places the following duties on licensed drivers of designated vehicles when hired to carry a person in a wheelchair:
to carry the passenger while in the wheelchair;not to make any additional charge for doing so;if the passenger chooses to sit in a passenger seat, to carry the wheelchair;to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;to give the passenger such mobility assistance as is reasonably required.
The roll out of clean air zones may see towns and cities implementing scheme were certain vehicles – including taxis and private hire vehicles – will be excluded all together from entering these zones.
If then, for example, a person in a wheelchair hires a designated licensed vehicle to take them to an area where the licensed vehicle will not be able to go due to a Clean Air Zone being in place, will it be reasonable under these circumstances to refuse the fare notwithstanding the section 165 duties? Or alternatively, will be acceptable to take such a person to the nearest point and drop them off there?
Aside from the legal difficulties that may arise, there are also practical difficulties with dropping a person with mobility difficulties off at the “nearest point” as there may, for example, be access constraints or the passenger may find it difficult to navigate from there to where they want to be.
Refusing fares
It is an offence for the driver of a licensed vehicle to unreasonably refuse a fare. In London, section 35 of the London Hackney Carriage Act 1831 creates an offence for doing so:
“Hackney carriages standing in any street shall be deemed to be plying for hire; and the driver thereof refusing to go with any person liable to a penalty
Every hackney carriage which shall be found standing in any street or place, shall, unless actually hired, be deemed to be plying for hire, although such hackney carriage shall not be on any standing or place usually appropriated for the purpose of hackney carriages standing or plying for hire; and the driver of every such hackney carriage which shall not be actually hired shall be obliged and compellable to go with any person desirous of hiring such hackney carriage; and upon the hearing of any complaint against the driver of any such hackney carriage for any such refusal such driver shall be obliged to adduce evidence of having been and of being actually hired at the time of such refusal, and in case such driver shall fail to produce sufficient evidence of having been and of being so hired as aforesaid he shall forfeit level 1 on the standard scale.”
Outside of London, the same requirement exists in respect of drivers of licensed hackney carriage vehicles under section 53 of the Town Police Clauses Act 1847:
“Penalty on driver for refusing to drive
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.”
The legislation therefore places a duty on drivers of licensed hackney carriage vehicles not to refuse a fare when standing on a rank unless they are hired or have a “reasonable excuse”. The duty to carry people when standing for hire applies only to journeys undertaken in within the prescribed distance or in other words those that starts and ends within the relevant licensing authorities’ district.
If a taxi is hired to take a person to either a charging Clean Air Zone or a Low Emission Zone – where a charge may apply also – will it be reasonable to refuse the fare on the basis that the driver will incur additional costs for honouring the fare? In the case of non-charging Clean Air Zones where access may be restricted all together, will it be reasonable for the driver of a licensed taxi to refuse the fare on these grounds?
Prolonged journeys
Under section 69 of the Local Government (Miscellaneous Provisions) Act 1976, it is an offence for the driver of a licensed hackney carriage or private hire vehicle to unnecessarily prolong a journey. Section 69 states:
“No person being the driver of a hackney carriage or of a private hire vehicle licensed by a district council shall without reasonable cause unnecessarily prolong, in distance or in time, the journey for which the hackney carriage or private vehicle has been hired.”
In the context of Clean Air and Low Emission Zones, will it be reasonable for the driver of a licensed hackney carriage or private hire vehicle to prolong a journey in order to, for example, to circumnavigate such a zone? The consequence of a prolonged journey in order to avoid a Clean Air or a Low Emission Zone is that the passenger may face a higher fare.
Additional costs
Finally, the introduction of Clean Air or Low Emission Zones can also hold statutory implications relating to fares.
Firstly, fares chargeable by private hire operators are not formally regulated and as such they can charge what they want. The same is not true for hackney carriages where maximum fares are set by licensing authorities. The consequence is that fares charged by private hire operators can be set to compensate the driver of a private hire vehicle for costs incurred when entering either a charging Clean Air Zone or a Low Emission Zone. Since fares charged by hackney carriages are set, they cannot apply a higher rate to compensate the driver in the same that the driver of a private hire vehicle can and as such hackney carriages may be more at a disadvantage.
Section 58 of the Town Police Clauses Act 1847 makes it an offence for the proprietor or driver of any hackney carriage to charge more than what is charged on their meter:
“Every proprietor or driver of any such hackney carriage who is convicted of taking as a fare a greater sum than is authorized by any byelaw made under this or the special Act shall be liable to a penalty not exceeding level 3 on the standard scale, and such penalty may be recovered before one justic; and in the conviction of such proprietor or driver an order may be included for payment of the sum so overcharged, over and above the penalty and costs; and such overcharge shall be returned to the party aggrieved.”
The only exception to the rule is under section 66 of the Local Government (Miscellaneous Provisions) Act 1976 that permits the driver of a hackney carriage to change more than what is displayed in the meter.
What is “reasonable”?
The majority of offences discussed in this article include a defence of “reasonable excuse”. This means that if the driver of a hackney carriage or private hire vehicle is reported for an offence under any of the offences above, they can put forward, amongst other things, an argument that their actions were reasonable under the circumstances.
This begs the question of what is reasonable? There is no statutory definition of “reasonable” in the legislation and no authoritative case law on reasonable actions in the context of the offences above. As such, what will constitute a reasonable action will come down to the individual circumstances of each case. What is important to remember, is that a reasonable action will be judged in light of how appropriate, fair and/or moderate an action was in light of a particular situation.
As an example, it may be considered more reasonable for the driver of a hackney carriage to refuse a fare to a destination where they are not permitted to enter due to the existence of a non-charging Clean Air Zone. On the opposite side, it may be arguable that it is unreasonable for the driver of a hackney carriage to refuse a fare on the basis that the destination is inside a charging Clean Air Zone and as such, such a driver will incur additional costs in fulfilling such a journey.
Conclusions
The Government’s Air Quality Plan is likely to result in an increase in the implementation of Clean Air and Ultra Low Emission Zones around the country. It is advisable that the taxi and private hire sector engage with local authorities on some of the issues raised in this article in order to get a clear understanding of the implications of these zones to their trade.
There is no doubt that there is the potential for litigation arising out of the implementation of these zones and it is incumbent upon the sector to understand where they stand legally in order to operate with confidence and to provide a good customer service.
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