Bournemouth, Christchurch and Poole Council (19 017 388)

Category : Environment and regulation > Licensing

Decision : Upheld

Decision date : 21 Oct 2020

The Ombudsman's final decision:

Summary: There was fault by the Council, because its policy about licensing wheelchair accessible vehicles as taxis is ambiguous, and because licence application forms were not freely available, but it is already taking steps to address these issues. It is too speculative, however, to say this caused an injustice to the complainant. There is no evidence to say the Council’s Licensing Officer was deliberately obstructive towards the complainant, nor that this was motivated by racism.

The complaint

  1. The complainant, to whom I will refer as Mr B, is represented in his complainant by Mrs V, who is a member of a local advocacy group.
  2. Mrs V complains the Council was obstructive towards Mr B in his attempts to have several vehicles licensed as hackney carriages. She says he was forced to sell one vehicle at a loss because of this, and that he underwent unreasonable delays in the application process for two other vehicles he subsequently purchased. Mrs V considers this was motivated by racial discrimination against Mr B.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I reviewed Mr B’s correspondence with the Council, some of the Council’s internal correspondence, and the Council’s hackney carriage and private hire vehicle licensing policy.

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What I found

  1. Mr B successfully applied for his taxi driver’s licence in July 2019. He then purchased a vehicle, with a view to having it licensed as a hackney carriage. I will refer to this as Vehicle 1.
  2. Mr B emailed the Council’s Licensing Officer on 12 August. I will refer to the Licensing Officer as Officer F. Mr B asked Officer F for an appointment the following day, to begin the process of licensing Vehicle 1. Officer F replied to say the next available appointment was on 15 August.
  3. Mr B emailed Officer F again on 15 August. He thanked her for meeting him that morning, and explained Vehicle 1 complied with the Council’s age limit policy on new hackney carriages, as it was purpose-built wheelchair accessible. Mr B expressed anxiety he would have to wait while Officer F looked into his application, as he had been out of work for a month at that point.
  4. Officer F replied quickly to say she would get back to Mr B as soon as possible.
  5. The Council says Mr B and Officer F also had a conversation on the phone about Vehicle 1. It has not said exactly when this was, but says that, during the conversation, Officer F explained to Mr B what evidence he needed to provide to show Vehicle 1 was purpose-built wheelchair accessible. After some discussion, Officer F said Mr B ended the call, but did not ask her to provide an application form to license the vehicle.
  6. Mr B then sold Vehicle 1. He says he lost £3800 in doing so, because he had paid for the installation of a taxi meter and for the vehicle to be resprayed.
  7. Mr B then purchased a second vehicle, to which I will refer as Vehicle 2. Vehicle 2 was newer than Vehicle 1, and under the Council’s age limit for new hackney carriages.
  8. Mr B emailed Officer F on 4 September. He said Vehicle 2 had passed its MOT, and asked her for an appointment to collect its licence. Officer F replied the same day to say she had made an appointment on 6 September to issue the vehicle’s plates.
  9. The Council confirms it licensed Vehicle 2 as a hackney carriage on 6 September.
  10. On 15 November, Mrs V submitted a complaint to the Council on Mr B’s behalf.
  11. Mrs V wrote Officer F had argued with Mr B about Vehicle 1 when she had met him originally. She said Officer F had refused to accept it was eligible for a licence, despite it being in accordance with the Council’s age policy because it was purpose-built wheelchair accessible. Mrs V said Officer F also refused to give Mr B an application form for this reason.
  12. Mrs V went on to say, after obtaining the licence for Vehicle 2, Mr B has witnessed licensed hackney carriages of the same make, model and age as Vehicle 1 on local taxi ranks. Mr B considered Officer F had refused to licence his vehicle for reasons of racial discrimination. Mrs V also said Mr B had attempted to discuss licensing with the drivers of the other similar vehicles, but they had refused to engage with him, which Mr B assumed was because they feared Officer F refusing to renew their own licences.
  13. Mrs V said Mr B had more recently purchased a third vehicle, Vehicle 3, which was wheelchair accessible. She said Mr B had again found Officer F to be obstructive, first declaring the vehicle was not purpose-built wheelchair accessible despite not having seen it, and then refusing to explain what evidence Mr B needed to provide for the Council to accept it was wheelchair accessible. Mrs V said Officer F had refused to give Mr B an application form, and had also told him she did not know the Council’s procedure for him to make a complaint.
  14. The Council replied on 13 December. It “refuted in the strongest possible terms” the allegation Officer F was racist, and explained she dealt daily with many licensees from a range of backgrounds.
  15. The Council went on to say the initial vehicle Mr B had sought to license was not a purpose-built wheelchair accessible vehicle, but a van which had been converted to carry a wheelchair, and which was over the Council’s age limit for a new hackney carriage. It said, during Officer F’s phone call with Mr B, she had discussed the evidence Mr B needed to provide to show the vehicle was wheelchair accessible, but he had terminated the call before asking for an application form.
  16. With regard to Vehicle 2, the Council said Mr B had applied for a licence on 4 September, and received it two days later. The Council said this was an acceptable timeframe and questioned whether Mr B’s expectations of its service were realistic.
  17. The Council said there were different schemes for different zones within the Council’s area, and that eligibility also depended on whether a vehicle was a hackney carriage or for private hire. For this reason, it said it could not comment further on Mr B’s allegation about seeing similar vehicles which the Council had licensed.
  18. With reference to Vehicle 3, the Council said it was attaching an application form for Mr B to complete and provide the evidence to show it was wheelchair accessible. The Council said it had consulted the DVLA on this point, and that Mr B would need to either present the vehicle’s certificate of conformance, or that an inspection would need to be arranged for it.
  19. Finally, the Council said Officer F had not been aware of the Council’s complaints procedure because of the recent merger into Bournemouth, Christchurch and Poole Council, but confirmed this had now been explained to her.
  20. Mrs V then submitted a Stage 2 complaint on Mr B’s behalf. The Council responded to this on 7 January 2020, after an investigation by the relevant Head of Service, to whom I will refer as Officer G.
  21. Officer G reiterated Officer F’s account that Mr B had put the phone down on her before asking for an application form to license Vehicle 1, after she had attempted to explain the rules around vehicle age. He acknowledged the rules were complex, and said it was his intention to unify the schemes for the three former council areas into one policy during 2020.
  22. Officer G said he could not comment on Mr B’s point about seeing other licensed vehicles, but observed they could have been below the age limit when first licensed.
  23. Officer G pointed out the Council had licensed Vehicle 2 in two days from Mr B’s application, and that, during his initial conversation with Officer F, had asked for an appointment within 24hrs. Officer G reiterated this was an unrealistic expectation of the service the Council could provide.
  24. Officer G also rejected Mrs V’s allegation that Officer F was racist.
  25. In conclusion, Officer G said he intended to review the Council’s policy to clarify the ‘purpose-built’ requirement for wheelchair accessible vehicles. He also said he would arrange for application forms to be available on the Council’s website, to “streamline the application procedure”, although he said it was still advisable for potential applicants to contact the Licensing Officer before purchasing a vehicle.
  26. However, on Mr B’s allegations against Officer F, Officer G did not uphold the complaint.
  27. Mrs V referred Mr B’s complaint to the Ombudsman on 20 January. In addition to the points she had raised with the Council, she said Mr B had seen Vehicle 1 in use as a licensed taxi in the Council’s area a few days after he had sold it. And, while she acknowledged the Council had licensed Vehicle 2 in two days, this did not account for the time Mr B had had to wait for an appointment, in which she claimed Officer F had been obstructive.
  28. Mrs V asked the Ombudsman to recommend the Council offer Mr B £3800 to make good his loss on Vehicle 1, £2000 to cover his loss of earnings she considered the Council had caused, and £3000 because of the “stress, frustration and humiliation” he had suffered.

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Legislative and policy background

  1. The law differentiates between two types of taxi – ‘hackney carriages’ and ‘private hire vehicles’. A hackney carriage can be hailed in the street or collect passengers from a taxi rank (for example, a black cab), while a private hire vehicle must be pre-booked and work through a licensed operator.
  2. A driver must obtain both a specific taxi driver’s licence, and a licence for their vehicle, from the relevant local licensing authority. Authorities set their own licensing requirements. There are often different requirements for hackney carriage and private hire vehicles.
  3. A decision by the licensing authority to refuse, or revoke, a licence can be appealed to the Magistrates’ Court.

Local policy

  1. In April 2019, the former Bournemouth, Christchurch and Poole Councils merged. However, the Council has explained its taxi licensing schemes are still split between the defunct authorities’ areas. In this case, the relevant local policy is that of the former Christchurch Council.
  2. At paragraphs 6.8 to 6.14, the policy says:

As from 1st August 2016, there shall be a presumption to refuse all new, transfer or change of hackney carriage applications, including temporary vehicles, for vehicles of 42 months or older;

The following prior exemptions may be applied at the discretion of the Public Health and Protection Manager:-

i. Purpose-Built Wheelchair Accessible Vehicles - Purpose-built wheelchair accessible vehicles, subject to such vehicles being less than 6 years old.

ii. Any other vehicle deemed suitable by the Licensing Sub Committee upon receipt of an application, having had regard to this policy.

There will be a presumption to refuse an application for a new, transfer or change of vehicle application for private hire vehicles which are 13 years or older.

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Analysis

  1. Mrs V, on Mr B’s behalf, has raised a number of allegations as part of his complaint. For clarity, I will address each individually in turn.

Officer F was obstructive about Vehicle 1

  1. Mrs V says Officer F declared Vehicle 1 to be ineligible without proper inspection, meaning Mr B was forced to sell it at a loss of £3800.
  2. The Council has provided an email chain between Officer F and Mr B. This shows Mr B emailed Officer F on 12 August, asking for an appointment the following day. Officer F replied the next available appointment was 15 August, which Mr B then agreed.
  3. Mr B emailed Officer F shortly after the appointment, expressing anxiety about delays in being able to work. Officer F replied to assure him she would get back to him as soon as possible.
  4. Although I cannot say what exactly happened during the appointment, it appears safe to assume that Officer F had noted the age of the vehicle, which at 51mths would make it too old for a new licence under the normal application of the Council’s policy; and that, in response, Mr B had pointed out the policy made an exception for purpose-built wheelchair accessible vehicles. I will also assume Officer F told Mr B she would look into this and then contact him again.
  5. Subsequent to this, the Council says there was a phone call between Officer F and Mr B. Officer F says, during the call, she attempted to explain to Mr B what evidence he needed to present to show Vehicle 1 was eligible for the exception, but he ended the call out of frustration without asking her for an application form. Mr B then sold the vehicle without making any further contact with Officer F.
  6. The Council has provided me with a copy of an email exchange between one of its officers and an officer at the DVSA (I note the Council referred to the DVLA in its complaint response, which appears to be an error). In summary, the DVSA explained a vehicle converted to carry a wheelchair before registration should have an approval certificate, whereas a vehicle converted after registration would not, and would likely need to be formally inspected to ensure the conversion was safe.
  7. It is unclear, however, whether either category is what the Council’s policy means by ‘purpose-built’. To my reading, a vehicle which has been converted, either before or after registration, is by definition not purpose-built.
  8. In its Stage 2 response, the Council has recognised the policy is unclear on the evidence requirements for wheelchair accessible vehicles, and says it will produce a revised policy to clarify this. I agree this is necessary. I will not make a recommendation to this effect, as the Council has already committed to address this problem, but I would ask it to ensure the revised policy clarifies exactly what is meant by ‘purpose-built’, and the circumstances (if any) under which it will accept a ‘converted’ vehicle, along with the evidence it needs to see.
  9. Despite this, I do not consider there is evidence that Officer F was obstructive towards Mr B in his attempt to license Vehicle 1. She arranged an appointment three days after Mr B asked for one, then agreed to follow up with him to clarify the evidence requirements for his vehicle, which I am satisfied she did. Mr B then chose to sell his vehicle without any further investigation. I appreciate his reasons for doing so, but I cannot accept this was because of any obstructiveness by Officer F.
  10. It does appear Officer F may also have been unclear about the requirements of the Council’s policy. While I am critical of this, I consider this to have arisen from the problems with the policy, rather than any attempt by Officer F to undermine Mr B’s application.
  11. This brings me to a related point.
  12. I note the Council said it would place application forms on its website – and I have verified it has now done so. However, it appears the previous procedure, at least for the Christchurch zone, was for applicants to make an appointment with the Licensing Officer to obtain an application form.
  13. I am concerned about this. As I have explained, the refusal of an application to licence a vehicle carries a right of appeal to the Magistrates’ Court. This being the case, I consider it imperative for such forms to be freely available. Requiring would-be applicants to make an appointment to obtain a form risks allowing officers to 'gatekeep’, potentially denying them their right of appeal.
  14. This is not to accuse Officer F of doing so in Mr B’s case. I cannot say whether Mr B actually asked for a form, but Officer F insists he did not, and there is no objective evidence which brings this into doubt. Again, it appears this issue has arisen because of a flawed procedure, rather than any mishandling by Officer F.
  15. I therefore find fault with the Council here, because of the lack of clarity in its policy, and the fact application forms were not freely available. But I am satisfied the Council has already identified these problems and is taking / has taken steps to address them.
  16. I also do not consider I can say either of these issues caused a substantive injustice to Mr B. It remains possible Vehicle 1 was eligible to be licensed, but it is equally possible it was not, and as he sold the vehicle this cannot be determined retrospectively. Either way, I consider the Council had good reasons not to immediately accept its eligibility. It was Mr B’s decision to then sell the vehicle, and I do not consider the Council can be held responsible for this.

Officer F delayed making an appointment for Vehicle 2

  1. Mrs V says Officer F also obstructed Mr B in his application for a licence for Vehicle 2. She acknowledges the Council approved his application in two days, but says Officer F consistently made ‘excuses’ to delay his appointment.
  2. Mrs V has not specified when Mr B attempted to get an appointment, or given any further detail about the alleged delays Mr B experienced. She has also not explained why she considers the alleged delays to be the result of obstructiveness by Officer F, rather than genuine unavailability.
  3. In any case, Mr B obtained a licence for Vehicle 2 roughly three weeks after his appointment about Vehicle 1, and so this represents the maximum amount of time he had to wait for an appointment. And this is without taking into account that he had to sell Vehicle 1, and buy Vehicle 2, before seeking to make an appointment, meaning it is unlikely it took even this length of time.
  4. I do not consider this an excessive delay and so I find no fault here.

Mr B’s observations of other vehicles / comments about other drivers

  1. Mr B says he saw Vehicle 1 being used a taxi in Poole a few days after he sold it. He also says he has seen other similar vehicles on a taxi stand in Christchurch, implying the Council normally has no objection to licensing such vehicles.
  2. As I have said, Poole is in a different former council area and so is not subject to the same scheme as Christchurch. I note also there is no indication whether the vehicle was in use as a hackney carriage or private hire; if it were the latter, it was well within the 13yr age limit for a private hire vehicle under the Christchurch scheme. And so the fact Mr B may have seen this vehicle in use elsewhere does not mean there is any fault in how the Council handled his own approach to it about Vehicle 1.
  3. With regard to the other vehicles of the same make, model and age, there is nothing in the Council policy which prevents a vehicle of this type being licensed. The question is the age of the vehicle at application. That Mr B has seen similar vehicles does not mean the Council made an exception to its policy, which it did not make for him. It could equally be that these vehicles were under the age limit when first licensed.
  4. Mr B also says he attempted to engage with the drivers of the other vehicles on this issue, but they refused to speak to him about it. Mrs V suggests this is because they are afraid of Officer F refusing to renew their licences. I consider this allegation entirely speculative.
  5. I find no fault here.

Officer F was obstructive about Vehicle 3

  1. Mrs V says Officer F was also obstructive when Mr B contacted her about Vehicle 3.
  2. It appears Mr B had purchased another vehicle, the status of which was unclear. By Mrs V’s account, Mr B had another phone call with Officer F where this was discussed. She says Officer F refused to provide Mr B with an application form, and also refused to tell him how he could provide evidence about its eligibility.
  3. Again, I have no objective evidence about this phone call. It does appear, though, that the problems with the Council policy and procedure may have also been a factor here – in particular that Mr B should need to contact Officer F to obtain an application form.
  4. Either way, I note the Council provided an application form for Mr B with its first complaint response, and explained the information it had received from the DVSA about certificates and inspections. So, even if Officer F did fail to provide this information when Mr B spoke to her, the Council remedied this approximately one month later.
  5. On balance, I do not consider I can make a finding on this element of Mr B’s complaint, except to reiterate my earlier points about the improvements needed to the Council’s policy and procedure. Regardless, I am satisfied any potential injustice to Mr B from this has already been remedied.

Officer F not understanding the complaints process

  1. Mrs V says, during the call about Vehicle 3, Mr B asked Officer F how he could make a complaint to the Council. Officer F replied she did not know.
  2. The Council has confirmed Officer F was unfamiliar with the Council’s complaints process, which it says is because of the merger of the three former authorities. It says Officer F has now been given guidance on the complaints procedure.
  3. I agree Council officers should be familiar with their local complaints procedure, and it is fault that Officer F did not. However, the Ombudsman cannot intervene in personnel matters. The Council has decided to address this by giving her guidance, which is a decision it is entitled to make.
  4. I note also Mrs V says Mr B’s conversation with Officer F was on 13 November, which was two days before she submitted a complaint on his behalf. This fault caused no significant delay in Mr B’s complaint, and I am therefore satisfied there is no injustice to him.

Allegations of racial discrimination

  1. Mrs V says Officer F’s alleged obstructiveness was motivated by racism, because Mr B is from an ethnic minority.
  2. As I have said, I am satisfied there is no evidence of deliberate obstructiveness by Officer F, although I accept some problems have arisen because of flaws in the Council’s policy and procedure.
  3. Even if I did have grounds to criticise Officer F, however, Mrs V has cited no evidence at all to support her allegation this was motivated by racism.
  4. I find no fault here.

Remedy suggested by Mrs V

  1. While I have found fault here, for the reasons given I cannot say this has caused Mr F a substantive injustice. It was his own decision to sell Vehicle 1 when he did, and so I cannot attribute his financial loss to any fault by the Council. Nor can I say there was any period he was out of work due to a Council failing, and so I cannot recommend the Council provide a remedy for loss of earnings.
  2. I accept Mr F may have suffered a degree of frustration, arising from the faults with the Council’s policy and procedure. However, the evidence does not allow me to conclude this made any real difference to his situation, and so I do not consider this warrants a remedy for him; and I am satisfied the Council has already committed itself to making improvements here, so there is nothing further for me to recommend in this respect.

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Final decision

  1. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman

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