Summary: The Council is at fault for failing to give Mr X reasons for its decision not to take action against a taxi driver he complained about. It failed to give Mr X the opportunity to comment on the allegations the driver made against him and then failed to consider a further complaint Mr X made. The Council’s actions caused Mr X distress, frustration and unnecessary time and trouble. To put this right the Council will apologise to him, pay him £200 and include his version of events in its records.

The complaint

1. The complainant, whom I will call Mr X, complains the Council failed properly to investigate and take action against a taxi driver who would not let him open a window and was rude to him. He says the driver now refuses without good reason to allow him in the cab.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. 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)
3. 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

4. I considered the complaint made by Mr X and discussed it with him. I asked the Council for a response and information and considered this.
5. Mr X and the Council had the opportunity to comment on a draft version of my decision. I considered the comments they made before I reached a final decision.

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What I found

6. Section 53 of the Town Police Clauses Act 1847 makes it an offence for a hackney carriage driver to refuse to carry a person wanting to hire the carriage without a reasonable excuse.
7. Under the Council’s Taxi Licensing policy, a hackney carriage’s rear passenger windows must be capable of being opened by passengers unless air conditioning is available.
8. The Council’s licensing officers enforce hackney carriage licences. The Licencing Officer must refer serious disciplinary matters to the Licensing Manager. A serious matter includes when a driver refuses to carry a passenger without good cause.
9. The Council will fully investigate all complaints. This can include taking a statement from the complainant, driver and any witnesses.
10. The investigating officer will consider all evidence and mitigating circumstances before making a recommendation to a senior officer who will reach a decision under the Housing and Public Protection Enforcement Policy. A senior officer is the investigating officer’s immediate supervisor or line manager.
11. The Council’s complaints policy says it will acknowledge a complaint within 2 working days. Within 10 days it will respond fully or provide an update. If the complainant is not happy with the response he can ask the Council to consider the complaint at stage two. The Council will only consider a complaint at stage two if one or more of the following applies:-

• The complainant believes the Council has not fully understood the complaint or did not investigate it thoroughly due to a misunderstanding;
• The Council has not responded to all points in the complaint;
• The Council has not replied at stage one or given an update.

What happened

12. On 9 July 2018 Mr X got into a taxi on a rank. The driver (Driver 1) refused to take him. Mr X got out and went to the next taxi in the rank. The driver of this taxi (Driver 2) went to ask Driver 1 why he had refused the fare. Driver 2 then returned to his taxi and took Mr X.
13. Mr X made an immediate complaint to the Council. On 19 July a Senior Licensing Officer (Officer 1) sent an email to Driver 1 asking him to come to the office to discuss the complaint. Driver 1 did not reply to the email. On 7 August Officer 1 telephoned Driver 1 and arranged to discuss the complaint with him on 14 August.
14. Driver 1 said he refused to take Mr X as he had a previous confrontation with Mr X because of non-payment when the police attended. He said this is what he told Driver 2.
15. On 21 August Officer 1 spoke to Driver 2 who confirmed what Driver 1 told him on 9 July. Officer 1 made a note she was satisfied Driver 1 had justification for his refusal to take Mr X.
16. On 22 August Officer 1 wrote to Driver 1 to say he had reasonable grounds to refuse the fare. She said she had closed the case and would take no further action.
17. On the same day Officer 1 sent Mr X an email to say Driver 1 had reasonable grounds to refuse his fare. Mr X immediately asked why she found Driver 1 had valid reasons.
18. Officer 1 said she could not disclose Driver 1’s statement as she obtained it as part of an investigation into a potential criminal offence. Mr X asked Officer 1 if she had verified what Driver 1 said and why she had not discussed with him what Driver 1 alleged. He asked what options he had and if Driver 1 had the right to continue refusing to take his fare. Officer 1 replied the Council always received conflicting accounts it could not verify. It had to assess the information it had. She said she needed to be satisfied beyond a reasonable doubt Driver 1 had refused to carry him without reasonable grounds. She said Driver 1 did have reasonable grounds.
19. Mr X said he wanted to make an official complaint as the Council was being partial to Driver 1. He also asked Officer 1 for details of the Ombudsman. On 6 September Officer 1 told Mr X he must go through the Council’s complaints procedure before coming to the Ombudsman.
20. Mr X made a complaint to the Council. I do not know the date Mr X complained. The Council has only provided its internal email dated 29 October when a complaints officer forwarded the complaint to Taxi Licensing.
21. On 31 October the Licensing Manager (Officer 2) emailed Mr X to say he did not have enough information to investigate his complaint. Officer 2 said Mr X needed to provide copies of emails or letters with a reference number so he could trace the case. Mr X replied the Council had not given him a reference number. He said he dealt with Officer 1 and gave her details. He said Officer 1 had refused to give him reasons for her decision. He said Officer 1 believed what Driver 1 said without asking him if it was true.
22. The Council replied to Mr X on 12 November 2018. The Council said it had done a thorough investigation of his complaint against Driver 1, had considered all the information and reached the right decision. It said it was not appropriate to share with Mr X what Driver 1 said either at the time or since.
23. Mr X asked the Council to consider his complaint at stage two. He said the Council had not fully understood or investigated his complaint and had not fully responded. He said the Council had not told him why it found Driver 1’s behaviour acceptable. Mr X gave his account of what happened in a previous incident with Driver 1. He said he got in the taxi and it smelled of smoke so he opened the window. He said Driver 1 closed the window and then locked it. He said there was light drizzle but not heavy rain. He said he could not get out as the taxi was moving. He said Driver 1 was rude to him and displayed racist behaviour
24. On 5 December 2018 the Council refused Mr X’s request to move to stage two. It said his request did not meet any of the criteria for this. It said Officer 2 had understood his complaint and told Mr X the Council could not share Driver 1’s account with him. It said Mr X had not raised the other issues in his original complaint.

What the Council says

25. The Council says Mr X made a different complaint at stage two to his original complaint so he could not go to stage two.
26. The Council says it did not take a statement from Driver 1. It says it decided after the informal meeting with him it would not take action. It says it did not take a statement from Driver 2, it spoke to him by telephone and he corroborated what Driver 1 said. The Council says it was a confidential investigation. It says it did not tell Mr X why Driver 1 said he would not carry him “as the Council did not wish to escalate the situation.”
27. The Council says it was for Officer 1 to decide if Driver 1 had good cause to refuse to take a passenger. As Officer 1 decided Driver 1 had good cause she did not have to refer the case to the Licensing Manager.
28. The Council says Mr X complained Driver 1 refused to carry him as a passenger. It says he did not complain about the earlier incident. It says Mr X confused the issue by referring to an issue he had not asked it to investigate.
29. The Council says it did discuss the earlier incident with Driver 1 as Driver 1 raised this. It says Driver 1 told the Council it was raining heavily and he did not want the inside of his car to get wet. It says although a taxi must have opening windows, it is unreasonable to keep a window open when heavy rain is getting inside the car.
30. The Council says Mr X made a complaint to the Police. It says the Police confirmed it was not taking action due a lack of CCTV or independent witnesses.
31. It says it could investigate Ms X’s complaint about the windows now but it has no proof of a breach of the law or its policy by Driver 1. It says because of the length of time since the incident any evidence from Mr X or Driver 1 would not be reliable.

What Mr X says

32. Mr X says he did not refuse to pay Driver 1 in the original incident. He says he wanted to pay him £3.50 instead of £4.50 because Driver 1 would not let him open a window and was rude to him. Mr X says the Police attended and he gave them the £3.50 to give to Driver 1 but Driver 1 refused this.
33. Mr X says he uses taxis every working day. He says Driver 1 now always refuses to take him as a passenger.

Analysis

34. We have no jurisdiction to investigate the actions of Driver 1. We also cannot carry out an enforcement investigation instead of the Council. Our role is to check if the Council carried out a proper investigation and treated Mr X fairly.
35. I do not consider the Council treated Mr X fairly. It failed to ask Mr X for his response to allegations made against him and to consider what he said.
36. The Council refused to tell Mr X why it had made its decision and what Driver 1 said. The Council based its decision on what Driver 1 told it happened in an earlier incident. Driver 1 made allegations about Mr X’s conduct. Driver 2 was not a witness to this incident, he could only tell the Council what Driver 1 told him on 9 July. The Council did not take statements from either driver. It had decided it would not take any action, civil or criminal, against Driver 1 when it emailed Mr X on 22 August. I can see no reason for the Council’s refusal to tell Mr X the reasons for its decision.
37. In the interest of fairness, the Council should have allowed Mr X the opportunity to give his version of what happened. Mr X did not confuse matters by telling the Council his version of the earlier incident. The Council should have asked him for it before it made its decision.
38. I cannot say the Council would have taken action against Driver 1, if it had given Mr X the opportunity to comment. The Council needs a very high level of proof to consider prosecuting a driver for refusing to take a fare. I accept that where the only evidence is one person’s word against another the evidence is unlikely to reach this burden of proof.
39. In this case the Council did not have one person’s word against another. It accepted one version of events and refused to consider the other version. The Council has only recorded Driver 1’s version, that Mr X refused to pay. This is not fair to Mr X. I do not say the Council must decide which version is correct but for fairness it should record Mr X’s account.
40. The Council has a policy that a passenger must be able to open a window if the car does not have air conditioning. It should have considered Mr X’s complaint Driver 1 refused to let him open a window. The Council now says Driver 1 said he stopped Mr X opening a window because of rain. This is not in the Council’s record of what he said. It also says it contacted the Police about the incident, again this is not in its records.
41. The Council is at fault for failing to consider Mr X’s allegation Driver 1 would not let him open a window. The Council says it is too late to do this now because of the time that has passed. I accept this, but this is the Council’s fault. Mr X tried to raise this with the Council nearly six months ago.
42. The Council is at fault for not telling Mr X the reasons for its decision, not giving him the opportunity to refute the allegation against him and for not considering his complaint about the window. It caused injustice to Mr X with distress, frustration and unnecessary time and trouble.

Agreed action

43. To put matters right for Mr X the Council has agreed that within one month of my final decision it will:-

• Apologise to Mr X.
• Pay him £200 for the distress it has caused and his time and trouble.
• Include in its records Mr X’s version what happened in the original incident.

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Final decision

44. On the evidence so far available, I have found fault by the Council causing injustice. I have recommended a remedy. If the Council accepts my findings and recommendations, subject to further comments by Mr X and the Council, I intend to complete my investigation and close the complaint.

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Investigator's decision on behalf of the Ombudsman