Summary: Mr G complained about delays in obtaining a taxi licence. We found fault in the time taken for the Council to resume testing of candidates, suspended at the outset of the COVID-19 pandemic and in misleading statements it made to Mr G during that suspension. This caused Mr G some avoidable distress and frustration. The Council accepts these findings and at the end of this statement we set out the action it has agreed to take to remedy Mr G’s injustice.

The complaint

1. I have called the complainant ‘Mr G’. He complains the Council delayed in allowing him to complete the process of becoming a licensed taxi driver. Mr G complains the Council:
1. did not hold ‘knowledge tests’ necessary to complete an application between March 2020 and October 2021;
2. unnecessarily referred his case to its Licensing Committee in December 2021 because a Disclosure and Barring Service (DBS) check undertaken in mid-November 2020 showed he had past criminal convictions. Mr G says following a change in the law at the end of November 2020 those convictions should have been disregarded, as they would not have shown on a DBS check from that date onwards.
2. Mr G says because of these delays he did not become a licensed taxi driver until December 2021, 12 months after he applied. Mr G says he lost the opportunity to trade and earn income as a taxi driver in that time. He also had to pay around £800 in March 2021 to ensure his vehicle could continue to be used as a taxi while waiting for his application to process and incurred additional insurance costs.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether councils followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

7. Before issuing this decision statement I considered:

• Mr G’s written complaint to the Ombudsman and any supporting information he provided by telephone or in supporting emails;
• correspondence between Mr G and the Council pre-dating our investigation of the complaint;
• further information provided by the Council in reply to written enquiries;
• any law, Government guidance or Council policy or procedure referred to in the text below.

8. I also gave Mr G and the Council a chance to comment on a draft decision statement where I set out my thinking about the complaint. I took account of any comments made in response to the draft before finalising this statement.

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What I found

The taxi license application process, relevant Government guidance during the COVID-19 pandemic and Council policy

9. The Council says its policy is to encourage applicants not to apply to become a licensed taxi driver until they have all the information needed for a successful application. This includes obtaining an enhanced DBS check. It also includes confirmation they have passed a local ‘knowledge test’. This is a test set by the Council that asks applicants about matters such as local routes and landmarks, road awareness, child safeguarding, relevant council policies and so on.
10. Before the COVID-19 pandemic applicants sat the knowledge test in a Council building under exam-type conditions, with two officers supervising. Around 12 applicants could sit the test at any one time.
11. In March 2020, in response to the pandemic, the Council suspended the knowledge tests considering it was not safe to offer these in-person in its buildings.
12. In September 2020 the Government issued guidance on ‘the safe use of council buildings’. This said:

• councils had discretion about when they considered it safe to open for activity permitted by legislation; it said they could decide to remain closed if they could not safely re-open;
• to help decide what action to take, a COVID-19 risk assessment should be completed by each operator of a council building;
• councils more generally should have re-opening plans taking account of core public health guidance around health, hygiene, and social distancing; safe workplace guidelines and any local lockdown areas or restrictions.

13. I asked the Council how it applied this guidance in practice. It said that it took a “very cautious approach to the re-opening of buildings and only very essential face to face meetings or training was allowed to take place [..] Service areas had to apply to [senior managers] to run any kind of training or hold face to face meetings. This was then considered, and if agreed […] a risk assessment had to be carried out to run this training. This would include finding a big enough room to allow social distancing. […] The only face to face meetings or training that were being authorised were those that involved an element of safeguarding. So, for example social workers meeting with parents. The re-introduction of knowledge tests wasn’t considered to be essential […]. Potential applicants had been aware of the suspension since March 2020 [this was advertised on the Council website] and the priority for the service was to maintain checks and applications for existing drivers.”  
14. Expanding on these comments the Council says its licensing service has only six full time officers. During the events covered by this complaint one was absent for a year and two others had long periods of absence. Another was seconded to a different service for several months. The licensing team had to maintain a service for around 1500 taxi licensees including ongoing vehicle and driving licence checks. It also had to undertake inspections of hospitality businesses when they re-opened to check their COVID-19 risk assessments.
15. The Council says in early January 2021 it began exploring if tests could be undertaken online as it had around 80 applicants waiting to take the test. It says the majority were applicants who had been waiting for tests since March 2020. It provided me with internal emails from February 2021 showing a plan to hold face-to-face assessments via video link was under active consideration at the time. The Council told me it delayed these plans due to the staff absences, as it needed two officers present to run the assessments and it did not have sufficient resources. Later, it then thought restrictions would be easing and given the online testing would use more staff resources it decided “to put the available resources into efforts to resume in person testing”. But the Council says it still needed to find an available room for the tests (which involved checks with outside organisations) and it needed to bring the test up to date.
16. In July 2021 the Government withdrew its guidance on use of Council buildings during the pandemic. This coincided with it lifting restrictions on social contact and with all sectors of the economy re-opening under ‘Step 4’ of its roadmap plan for ending COVID-19 restrictions. The Council said it remained cautious about re-opening its buildings. It did not resume knowledge tests until October 2021. The Council says for a variety of reasons, related to both personal circumstances and demands on the service, officers in its licensing service remained under pressure during Autumn 2021. To resume testing, it had to use staff from outside the service to administer the test and it took time to train them.

DBS checks for taxi drivers and Council policy

17. The Rehabilitation of Offenders Act 1974 provides a general framework for when employers and others can request information about past criminal offences. Taxi drivers fall within the scope of the Rehabilitation of Offenders Act (1974) (Exceptions)(Amendment) Order 2002. This means that any convictions or cautions are not considered automatically spent after a period of time. Convictions that in other circumstances may be considered spent will therefore still appear on an enhanced DBS check, something required as part of a licence application.
18. However, since 2014, the Government has allowed for certain minor offences to be removed or ‘filtered’ from enhanced DBS checks. Those filtering rules changed again at the end of November 2020. The new rules meant more criminal offences would be filtered from enhanced DBS checks, where:

• they occurred more than eleven years previously;
• they had not resulted in a custodial sentence;
• they were not for an offence under a list of serious offences that would not be filtered; and
• the applicant had not been convicted of anything subsequently.

19. The Council has a policy that where an enhanced DBS check shows any criminal conviction, the final decision on whether to approve a license will be taken by its Licensing Committee. Council policy explains that having a conviction is not a bar to receiving a licence. But as taxi drivers are in a position of trust it may result in refusal. Council policy goes into more detail about how the Council will take account of individual offences and explains when it is “likely to refuse” an application. This is something that will depend on the nature and severity of the offence and when conviction took place. The less severe the original conviction and further back in time, the more likely the Council will approve a licence.

Chronology of contacts between Mr G and the Council

20. In 2020 Mr G found his employment impacted by the COVID-19 pandemic. He had held a taxi licence around 10 years previously and decided to re-enter the trade. He brought a vehicle that already carried a taxi plate (i.e. it was approved for use as a taxi by the Council) but he could not use it as such until he had obtained a new licence. Mr G paid to keep the vehicle insured as a taxi, although he later amended his policy for private use only until such time as the Council awarded him a licence.
21. Mr G initially made enquiries of the Council in September 2020. It advised him that knowledge tests were suspended and had been since March 2020 due to the COVID-19 pandemic. He was advised to delay making an application.
22. Mr G made further contact in December 2020. He was told knowledge tests remained suspended and advised again to delay making an application. However, Mr G chose to pursue an application in any event. With his application he provided an enhanced DBS check undertaken in mid-November 2020. This showed Mr G had three criminal convictions. All were more than 20 years ago and pre-dated the time when he had previously held a taxi driving licence. None had resulted in a custodial sentence. None was for a serious offence that would not be filtered under the current DBS rules.
23. In January 2021 Mr G asked a local MP to make enquiries on his behalf about when he might sit his knowledge test. The Council reply explained some of the pressures its taxi licensing service was under. But it said: “we are now in a position to restart the tests”. It said it had a backlog of applicants and so it would be around two months before Mr G could sit a test.
24. In March 2021, having not heard further, Mr G enquired again about sitting the test. He was told the Council was “still working out the logistics of the online tests but please be assured this is a priority […] as explained previously we have to get through the list of applicants whose bookings were cancelled last year before we get to any further new applicants. You’re on the top of that list though”. In the same month the Council updated the MP to say tests would resume in “the next few weeks” and the following month that they would start “in early May”
25. Mr G says that around this time he spent around £800 ensuring the vehicle would continue to meet the licensing standards to be used as a taxi. This included maintenance, repair and test fee.
26. In May 2021 Mr G complained that he had still not heard about sitting a test. He said the Council had ‘lied’ to him. In reply, he was told the Council “was continuing to work on the launch of our new knowledge test”. The Council also said it had “kept you up to date with developments where possible, but […] haven’t always been in a position to reply due to the regularity of your communications.”
27. In September 2021 Mr G instructed a representative who contacted the Council to enquire about the knowledge tests. He was told the Council would resume tests the following month and it gave Mr G a date in mid-October, shortly after testing resumed, which meant giving Mr G’s application preference over others who had been waiting longer. Mr G initially failed the test but re-sat at the beginning of November 2021 and passed.
28. Mr G was then told his taxi licence could not be approved because his DBS check showed past convictions. In accord with Council policy his case had to go to its Licensing Committee and that did not sit for another month. In the meantime, Mr G pointed out to the Council the change in the law that occurred shortly after he obtained his enhanced DBS check. He explained that if he were to apply now for an enhanced DBS check no criminal convictions would show. He also reminded the Council he had previously held a licence after the convictions took place. The Council says it took legal advice and while it accepted the points being made by Mr G it could not depart from a policy which did not allow officers discretion where they held a DBS check showing past convictions.

My findings

Complaint about delay in arranging knowledge tests

29. I consider there was no fault in the Council suspending knowledge tests at the beginning of the pandemic in March 2020, given the risks associated with contracting COVID-19 through in-person meetings.
30. Nor do I consider the Council at fault for not resuming testing in September 2020 when the Government first issued guidance on use of council buildings during the pandemic. This is after taking account that first, the Council had a general discretion about what, if any, services it re-opened in its buildings. Second, the Council has explained why it took a cautious approach and why it did not prioritise resuming knowledge tests.
31. That said, clearly from September 2020 the Government expected councils to develop an approach towards re-opening services when it was considered safe to do so. The Council should be able to show how, from September 2020, it was preparing for a re-opening of its buildings over time. However, I find no evidence the Council did this. That it cannot do so is evidence of fault.
32. This meant that when, in July 2021 the Government expected council buildings to re-open for face-to-face services, the Council was unprepared for this. By now the Council had abandoned plans to undertake online knowledge tests. Its staffing pressures had also eased to some extent, and it was putting resources back into in-person testing. I accept that even so, its taxi licensing service remained under pressure and so returning to ‘business as normal’ may not have been possible. But the Council should have been working to resume knowledge tests by the beginning of August 2021 at the latest. Even if this meant bringing in some more support for its licensing service to run the tests, as was eventually the case. While I am not without sympathy therefore for the pressures the service was under, I consider it was a fault, because of service failure, the tests had not resumed by then.
33. I note the Council brought forward Mr G’s test which I consider an act of goodwill in the light of Mr G’s complaint. But even so he still experienced the injustice of around 10 weeks of avoidable delay before he could sit his knowledge test.
34. I also consider that by this time there had been flaws in the Council’s communications with Mr G. It is a key principle of good administrative practice that councils should be open and transparent with complainants. Our guidance on good administrative practice during the pandemic also emphasised the importance of managing expectations during unavoidable delays. But the Council did not meet these standards.
35. First, because it was not correct for the Council to say to Mr G in January 2021 that it was “in a position” to resume tests when its plans for online testing were clearly not advanced. Later, in March and May 2021, the Council told Mr G it was continuing to work on launching the online tests. However, it has provided no evidence to demonstrate this – as the only information I have seen showing planning for an online test took place in February 2021. Further it was wrong for the Council to say it had always kept in touch with Mr G. The evidence shows Mr G chased the Council, but not excessively and only when he expected to hear something from it. These poor communications justify a finding of fault.
36. Mr G has been caused injustice from these faults. He was caused unnecessary uncertainty and distress by losing the opportunity to begin trading sooner. He was also put to unnecessary time and trouble when chasing the Council for updates.
37. However, I do not consider part of Mr G’s injustice is the fees he has been charged for insuring, maintaining and testing his vehicle to ensure it remains suitable for use as a taxi. I accept these costs were frustrating to Mr G while he could not trade. But Mr G purchased his vehicle without knowing if he would receive a licence and knowing there would be costs for annual testing and maintenance. He was also able to reduce his exposure to insurance costs by keeping the vehicle insured for private use only while waiting for his licence.

Complaint about referral to licensing committee

38. Turning to the issue of the DBS checks, I can understand why it appears unfair to Mr G that his case had to progress to the licensing committee. Because a more up to date DBS check would not have shown the historic convictions which were the cause of his application going to committee. He had also held a license previously in the time after the convictions took place.
39. However, while Mr G had held a licence before, this was a new application, made after several years, and the Council had to treat it as such. The responsibility for providing the DBS certificate also belonged to Mr G, not the Council. From December 2020 onward he could have asked the Council to use a more up to date certificate. But as matters stood the Council could only act on the information it held. And because the DBS check provided by Mr G showed he had past convictions, officers were obliged to defer a decision on his application to the licensing committee.
40. I can find no fault in that policy, which reflects the overall need for the Council to protect public safety and maintain confidence in its licensing service. It follows therefore that I can find no fault in the Council following it. I recognise the additional month delay for Mr G would add to his frustration, but it resulted from a proper application of that policy. So, I cannot fault it.

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Agreed action

41. The Council accepts the findings I have detailed above. To remedy the injustice identified at paragraphs 33 and 36, it has agreed that within 20 working days of a decision on this complaint it will:

• apologise to Mr G accepting the findings of this investigation;
• pay Mr G £350 in recognition of his injustice; £250 to recognise the uncertainty and loss of opportunity caused by its delay and £100 for his time and trouble.

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Final decision

42. For reasons set out above I uphold this complaint finding fault by the Council causing injustice to Mr G. The Council accepts these findings and has agreed action that I consider will remedy that injustice. Consequently, I can now complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman