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Transport for London (21 003 359)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 04 Mar 2022

The Ombudsman's final decision:

Summary: Mr C said Transport for London was at fault for a failure to inform him testing of taxis had resumed after a pause caused by COVID-19. Transport for London was at fault. It said it would contact Mr C when the pause ended. It did not do so. Nor did it tell him of an extended deadline which would have allowed him to renew his taxi licence. This caused Mr C injustice. he was caused significant distress as he could not pay his bills or work. Transport for London has agreed to pay Mr C £999 to remedy the injustice found.

The complaint

  1. The complainant, Mr C, is a London taxi driver. He says that Transport for London (‘TfL’) is at fault because it:
      1. wrote to him in April 2020 saying it had paused testing of taxis and would write to him when testing resumed and then did not do so,
      2. only informed drivers about a deadline for licensing taxis via social media, and
      3. communicated with him poorly. He received letters from various different people, one anonymous.
  2. Mr C says this caused him injustice because:
      1. he lost at least seven months’ work,
      2. he was unable to relicense his taxi, and
      3. he hired a taximeter he never used for £99.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. 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 injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A (1), as amended)
  2. If a public sector body has considered its duties under the Equality Act 2010, we do not consider whether it did so adequately. However, if it seems that the body has not considered its duty at all, we can find fault and may make recommendations to remedy that fault.
  3. If we are satisfied with TfL’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 considered the information Mr C provided and wrote an enquiry letter to TfL. I considered the response I received before writing a draft decision.
  2. Mr C and TfL had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should happen

Taxi licensing

  1. Owners and/or operators of licenced London taxis must purchase an annual vehicle licence. They cannot receive this licence unless their taxi is inspected and found to be fit for purpose. They must book an inspection no more than 28 days before their previous vehicle licence is due to expire. If the vehicle passes the inspection, they can renew their licence. If it does not, they must have repairs carried out before a new licence can be issued.
  2. These vehicle licences are valid for 12 months. TfL says they cannot be issued for a shorter period.

Taxi age limits

  1. In July 2019, TfL introduced taxi age limits. No taxi would be allowed to operate beyond the fifteenth anniversary of its registration with the Driver and Vehicle Licensing Agency (DVLA).
  2. Because vehicle licences last for 12 months, TfL says no taxi can be issued with a licence after the fourteenth anniversary of its DVLA registration as this would mean the licence would run beyond the fifteenth anniversary.

The Equality Act 2010

  1. The Equality Act 2010 lists nine ‘protected characteristics’. These include age. The Act makes it unlawful for organisations carrying out public functions to discriminate against anyone on account of any protected characteristic. This is known as the Public Sector Equality Duty. This duty requires public bodies, including TfL, to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation against anyone with a protected characteristic.
  2. The purpose of the public sector equality duty is to introduce consideration of the rights of those with protected characteristics into the day-to-day business and decision making of public bodies. It requires them to create policies and provide services, including internal policies, which consider those rights. Public sector bodies must keep their policies and practices under review to see where improvements can be made.

Direct and indirect discrimination

  1. Discrimination can be either ‘direct’ or ‘indirect’. Direct discrimination is treating a person less favourably because they have one of the protected characteristics. Indirect discrimination may occur when a service provider such as TfL introduces a policy or practice which, even unintentionally, affects people sharing one or other protected characteristic worse than the general population.

Fettering discretion

  1. Where legislation gives a public body discretion to make decisions, for example, to award a licence, that body must allow itself to consider each decision on its own merits; the public authority must not ‘fetter’ its discretion by applying a rigid or “one-size-fits-all” policy to all applications without considering the specific facts of each case. A decision that is made by a public authority that has fettered its discretion in this way may be challenged on the grounds that the decision is unlawful. It may also be challenged on the grounds that the procedure by which it was made was unfair, or on the grounds that it is unreasonable.

The “Good administrative practice during the covid 19 pandemic” guidance

  1. The Ombudsman issued the above-named guidance to help organisations delivering services during the pandemic. It includes the following guidance, “If you use new or revised policies and processes, this should not lead to arbitrary decisions and actions. Ensure you have a clear framework for fair and consistent decision making and operational delivery”. (Chapter 4, Acting fairly and proportionately)

What happened

Background

  1. At the time in question, Mr C was in his 60s and had no computer or smart phone. He has never used social media. He received information from TfL by post.
  2. Mr C has been a London taxi driver for some years and, in early 2020, owned his own taxi. The 14th anniversary of its DVLA registration fell in mid-April 2020. This meant he had to apply for a final licence before that date or it would be too old.

The events that led to the complaint

  1. In February 2020, TfL wrote to Mr C to remind him that his licence would expire in mid-April 2020 and he should book an inspection if he wished to renew it. Mr C wanted to renew his licence. Therefore, he paid his fee and booked the inspection as required for a date in mid-April 2020. Mr C says he had received a similar reminder every year for many years.
  2. At this time, the COVID-19 pandemic was at its height. On the day of the test, TfL wrote to Mr C again and said that, because of the pandemic, vehicle inspections would be paused. TfL said Mr C’s licence would remain in force for a further six months, “pending the full resumption of vehicle inspections”. It asked him to keep a copy of the letter as proof that his licence had a six-month extension.
  3. The letter said, “You are not required to book a vehicle inspection at this time and we will notify you when the position in relation to the availability of vehicle inspections is more certain. Kindly confirm as a matter of urgency if you do not intend to renew your licence”.
  4. Mr C says he did not receive this letter for a month after the cancelled test. He says this meant he was not aware that his licence had been extended until May 2020. He says he lost a month’s work as a result.
  5. Mr C says he did intend to renew his licence so, having received the letter, he did not contact TfL. He awaited information about the renewal of vehicle inspections. In June 2020, Mr C rented his taxi meter for another year at a cost of £99.
  6. The six-month extension to Mr C’s vehicle licence ended in mid-October 2020. Mr C says he always received a reminder letter from TfL shortly before his licence expired reminding him to renew but, on this occasion, he did not. Therefore, he says, he contacted TfL in early October, asking how to proceed.
  7. Mr C received a response from TfL’s taxi contracts department in mid-October 2020. It said that, because of the pandemic, it had extended the deadline for owners of vehicles which had their fourteenth anniversary between March and June 2020 to allow them to apply for a final licence, until 31 August 2020. However, it said, this extension period had now ended. So, as Mr C’s taxi was now over fourteen years old, his licence could not be renewed. It said, “there are no exemptions to taxi age limits”.
  8. The letter suggested that Mr C could apply to TfL’s taxi delicensing scheme which provided grants of up to £6000 to those wishing to delicense their taxis.
  9. TfL said that it had provided information about these changes at the relevant time. It said, “this information was communicated via our usual communication channel to the trade via notices and social media”. It said it had issued a number of notices for taxi and private hire vehicles over the relevant period. The letter contained a hyperlink to these notices.
  10. Mr C wrote to the head of TfL’s Taxi and Private Hire department in February 2021 asking her to grant him his final year’s licence. He said the letter of April 2020 “gave no hint of any procedural changes in the re-licensing process”. He said TfL had written to him every year in the previous 13 years to remind him to book a test. “So, naturally, I expected the customary reminder letter to arrive as usual, probably in early September’.
  11. He said he did not use social media and that it was “totally unacceptable” that TfL should have presumed that he would learn of its plans in that way.
  12. Mr C also questioned how he could hope to apply to the taxi delicensing scheme when his taxi had no licence. He said he had spent £110 on the inspection which had never occurred and £99 on a taxi meter he could not use.
  13. TfL acknowledged receipt of this letter a week later but Mr C did not receive any further response. In early April 2021, Mr C says he asked a relative to send an email to TfL to chase his previous letter. He also phoned TfL. He says he was told that his letter had been placed in the wrong file.
  14. TfL responded on 9 April 2021. It said it would not reconsider its position. It said it had sympathy but could not make an exception to the rules which were intended to improve air quality. It offered to refund the £110 Mr C spent on his vehicle inspection but refused to refund the money spent on the taximeter as it had not been paid to TfL.
  15. Mr C complained to the Ombudsman.

The TfL response to my enquiries

  1. In its response to my enquiries, TfL said it had written to taxi owners, like Mr C, who were due to have their vehicles inspected between March and June 2020 to extend their licences because the pandemic made inspections impossible. (Mr C says he received this letter in May 2020).
  2. TfL said that it then, “recognised that there were a number of taxi and private hire vehicles that went beyond the maximum permissible age to be licensed [during that period]. In normal circumstances, some of these vehicle licensees may have sought to surrender their licence and obtain one final 12-month licence, to ensure the vehicle could remain licensed until it reached its maximum age limit.”
  3. It continued, “In recognition of the unprecedented circumstances, we put temporary and special arrangements in place for a limited period. Any taxi vehicle that was 14+ years old, that would have sought to surrender and then renew its licence for a final time between 23 March and 30 June 2020, could surrender and obtain a final 12-month licence. These arrangements were in place for a limited period and the affected vehicles must have surrendered the licence and then obtained a final licence by 31 August 2020”.
  4. It says that, as far as Mr C was concerned, “his vehicle licence was due to expire [in October 2020], following the extension of his licence. While the licence had been extended until that date it would not have been possible to renew the licence in October 2020. …He would have had to reapply for a new licence prior to 31 August 2020. No such application was received and the licence expired on 10 October 2020”.

Was there fault causing injustice?

Failure to inform Mr C that the pause had ended

  1. In its April letter to Mr C, TfL clearly stated it would contact him when the pause was over. TfL accepts that it did not do so. This was fault because TfL said it would do something which it did not then do. This fault caused Mr C an injustice as he waited to hear from TfL to inform him when he could test his vehicle and missed out on the opportunity to re-licence.

Failure to inform Mr C of the 14-year+ licensing period extension

  1. TfL says that it was only after it had extended a number of licences, including Mr C’s, that “it realised that there a number of taxi and private hire vehicles that went beyond the maximum permissible age to be licensed” during the period of the extension.
  2. It says that, because of the exceptional circumstances, it allowed some vehicle owners to renew their vehicle licences after the 14th anniversary of their DVLA registration in an extension period which ended on 31 August 2020.
  3. It did not tell Mr C personally about this decision or the deadline. Instead, it relied on notices and social media posts online. As a result, Mr C did not learn of the extension period until October 2020, by which time the deadline had passed.
  4. This too was fault. Mr C says, and I accept, that he understood that, because his licence had been extended until October 2020, he would be able to apply for one last licence in October 2020.
  5. TfL says that, after writing to Mr C, it realised that those in Mr C’s position would not be able to extend their licences if their taxis passed their 14th anniversary during the period of the licence extension. it therefore extended the period for them to apply for their final licences until 31 August 2020.
  6. That being the case, TfL should have informed Mr C of the extended deadline because it affected him. The April letter to Mr C says nothing about final licences. However, in the circumstances, it was reasonable for Mr C to understand that he would not be disadvantaged by TfL’s decision not to inspect and that his licence could be renewed when it expired.
  7. TfL accepts that it did not consider those in Mr C’s circumstances until after it had written to him. The failure to tell him of the new policy was fault causing injustice. Mr C could not have been expected to apply for his final licence by 31 August 2020 because he did not know that he had to do so. As stated above, he lost the opportunity to re-licence his taxi because of this fault.

Informing drivers only online

  1. In its response to my enquiries, TfL said that it informed drivers of the extension of the deadline to license certain taxis until 31 August 2020 via online notices and social media. It says, in its response to my enquiries, that this is “commonplace”. It says, “We do not believe it would have been unreasonable to expect Mr C to take some steps to access information referred to in our letters”.
  2. I do not accept that this was a fair position for TfL to take. Mr C did not have a computer or a smart phone and did not use social media. TfL says it had received an email from Mr C previously so believed he had access to email. But Mr C says he had an email address which was handled by a relative. He did not have access to it on a day-to-day basis. On balance, I accept this. It is clear Mr C was keen to re-licence his taxi and, if he had been on social media, he would have seen the alerts and updates. I accept he would have acted on that information.
  3. Further, TfL had informed Mr C by post of an extension to his vehicle licence. It was reasonable for Mr C to expect that any further updates, including the detail about any newly proposed extension date, would be communicated by post as well. The failure to communicate the extended deadline date in that way meant that Mr C lost the chance to apply for a final licence for his taxi.
  4. I have seen no evidence that TfL considered its responsibility towards people in Mr C’s position who do not use social media, most of whom are in an older age bracket, when considering how to publicise the changes to its policies caused by the COVID pandemic in early 2020. This was fault. TfL is a public sector organisation and is obliged to consider its obligations under the Equality Act 2010.
  5. In response to my draft decision, TfL has said, “While we do issue general updates, and other wider information, via social media and TPH Notices we do not use these communication channels to provide information to licensees on issues which effect their individual licences. Any information relating to a licence such as expiry information, renewal reminders, extensions, change in conditions or requests for further information is sent direct to the licensee. The information is sent via the licensees preferred method of communication which is selected at the point of application”.

Fettering discretion

  1. TfL responded to the extraordinary events of early 2020 by changing its policies and procedures. It extended vehicle licences for six months and allowed people whose vehicles were over 14 years old to apply for final licences until 31 August 2020. This showed it was able to adapt to extraordinary circumstances. It was good practice.
  2. TfL subsequently told Mr C it could not allow him to apply for a final licence in February 2021 because, “there are no exceptions to taxi age limits”. TfL was at fault for this approach because it fettered its discretion. It was also not correct as it had just made exceptions to taxi age limits, allowing an extension which had expired in August 2020.
  3. It was a matter for TfL to consider what was exceptional. That is not the role of the Ombudsman. But on the face of it, Mr C’s circumstance has the appearance of being exceptional. I would, therefore, expect TfL to have explained why this was not an exceptional circumstance before refusing to extend his licence.

Complaint handling

  1. Mr C says he received one letter from someone identified only by their first name. TfL has accepted that this was not good practice and says it has taken steps to ensure it does not happen again.
  2. Mr C says TfL is at fault because he wrote letters to named people at TfL and did not receive responses from those people but from others in the organisation. I have not found fault on this basis. TfL has systems for dealing with complaints and contacts from members of the public. This is not maladministration.
  3. However, I do find TfL at fault for the amount of time it took to respond to Mr C’s complaints. TfL says its Taxi and Private Hire department will respond to complaints within 10 days. Mr C complained to the head of Taxi and Private Hire Licensing in early February 2021. TfL did not reply for three months and, even then, only did so after he had written to them again and telephoned them. Even allowing for the pressures on TfL caused by the pandemic, this was unacceptable delay. It was fault and it added to Mr C’s injustice as he was understandably distressed that his situation had not been addressed.

Injustice

  1. Mr C says, and I accept, that he suffered financial hardship. He says he could not work for seven months because he had no licence. At the same time, though, he said he still had to pay his vehicle excise duty, insurance and parking permit. He says he was forced to go to a food bank. He says and I accept, he could not pay his income tax, water, gas, electricity, accountants’ or any other bills. Ultimately, he says, and I accept, he had to sell his taxi. He said, “…this could all have been avoided if TfL had written to me last year warning me to rebook the annual cab inspection by 31 August”.
  2. I cannot find that Mr C lost seven months’ work because of TfL fault. Mr C could have hired another taxi sooner than he did. It is not TfL’s fault that he did not do so. Further, it is impossible to say what, if anything, his profits would have been during the period in question as the COVID pandemic would have affected business. It is also possible that Mr C’s taxi would have failed its final inspection and that he would not have been able to drive it even if he had been informed of the extension.
  3. However, it is clear that Mr C suffered a great deal of distress as a result of the loss of his licence. He would have understandably been shocked that he was unable to re-licence his taxi. It is understandable that he took some time to gather his thoughts and hire another taxi.
  4. The Ombudsman’s Guidance on Remedies says a remedy payment for distress is often a moderate sum of between £100 and £300. In cases where distress was severe or prolonged, however, up to £1,000 may be justified.
  5. Mr C says, and I accept, that, during this difficult time, he could not pay his bills. I accept that would be a natural consequence of his not being able to earn a living in the way he had expected. He says, and I accept, that he had to go to a foodbank. This too would have been highly distressing. I recommended that TfL should pay Mr C £600 for the distress it caused him. It has agreed.
  6. Mr C also took considerable time and trouble attempting to persuade TfL to allow him to apply for a final licence. TfL has agreed to pay him £300 for this injustice.
  7. TfL told Mr C that it would not refund the money he spent on the rental of a taximeter in June 2020 as he did not pay this money to TfL. However, the important point is not whether the money was paid to TfL but whether the expenditure was wasted because of TfL fault. I have found that it was. I therefore recommended that TfL should also pay Mr C the £99 he spent on the rental of a taximeter that he did not use. TfL has agreed.

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Agreed action

  1. TfL has agreed that, within four weeks of the date of this decision, it will:
      1. write and send a letter of apology to Mr C, and
      2. pay him £999.
  2. Within two months of the date of this decision, TfL should:
      1. Provide evidence to the Ombudsman that it has made diligent efforts to identify any other taxi drivers and private hire drivers who were affected by the same fault identified in this decision and inform them of this decision. It should consider offering those affected a suitable remedy if appropriate and inform the Ombudsman of those cases and the remedy offered. It should also inform those affected that if they are unhappy with the consideration given to their cases, they can raise a complaint with the Ombudsman.
      2. Consider whether making changes to policy and contacting taxi and private-hire drivers via social media is adequate.
      3. Write to the Ombudsman with evidence that it has completed the above.
      4. Require the director of the Taxi and Private Hire department to consider TfL’s duties under the Equality Act 2010 towards those without access to social media, and in particular, those in an older age bracket, and to write a report outlining TfL’s response to the decision.
      5. TfL should then send this report to the Ombudsman.

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Final decision

  1. I have found TfL at fault. I recommended a remedy which TfL agreed. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman

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