MUHAMMED AZHAR AGAINST DUNDEE CITY COUNCIL
SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE
[2017] SC DUN 32
B667/16
JUDGMENT OF SHERIFF GEORGE ALEXANDER WAY
in Summary Application under paragraph 18 of Schedule 1 of The Civic Government (Scotland) Act 1982 as amended
In the cause
MUHAMMED AZHAR
Appellant
Against
DUNDEE CITY COUNCIL
Respondent
Act: Mr Glass Solicitor, Messrs Baillies
Alt: Mr Woodcock Solicitor, Dundee City Council
2 May 2017
The Sheriff having resumed consideration of the cause, finds the following facts admitted or agreed:
1. The appellant holds a taxi licence issued by the respondent and has held such a licence for a period of seven years.
2. The appellant’s taxi licence was issued under the condition that the appellant operate a wheelchair accessible vehicle (“WAV”).
3. At the respondent’s licensing committee meeting on 1 September 2016 the appellant sough a variation of the conditions of his taxi licence by the relaxation of the condition requiring him to operate a WAV and to allow him to substitute a saloon type vehicle.
4. The appellant’s reasons for such a variation were advised in his letter of 14 June 2016 addressed to the respondent.
5. The information contained in the letter of 1 June 2016 from Dr Shah of the Occupational Health & Safety Advisory Service is accurate in all respects.
6. At the time of considering the appellant’s application, the respondent had a policy limiting the number of taxi licences in the City of Dundee to a figure of 575 but that the actual number of taxi licences issues is 583. This figure has since (2 March 2017) been amended to a limit of 555 taxi licences.
7. The appellant sought a statement of written reasons from the respondent in terms of paragraph 17 of Schedule 1 of the 1982 Civic Government (Scotland) Act and the respondent issued such a statement dated 31 October 2016.
8. The appellant is a disabled person as defined by section 6 of the Equality Act 2010.
9. The appellant suffers from chronic long-standing back pain as a consequence of arthritis in his lower spine having led to narrowing of his spine.
10. The pain suffered by the appellant is exacerbated by the driving posture that requires to be adopted when driving a WAV.
11. The driving posture of a standard saloon type vehicle would assist in alleviating the lower back pain suffered by the appellant when driving.
12. The appellant’s taxi provides him with his sole source of income.
13. The respondent operates a policy whereby they require all new taxi licences to operate a WAV and that in applying such a policy the respondent seeks to have approximately 60% of the taxi fleet within Dundee operating WAVs.
14. The respondent has imposed on it a duty to make reasonable adjustments in terms of section 20 of the Equality Act 2010.
Finds in Fact and Law
- The respondent erred in law by failing to properly discharge its duty to make reasonable adjustments to its taxi licence policy in terms of section 20 of the Equality Act 2010.
THEREFORE: Upholds the appeal in terms of sub-paragraph 7(a) of paragraph 18 of Schedule 1 of the Civic Government (Scotland) Act 1982, remits the case to the respondent for reconsideration of their decision under sub-paragraph 9(a) of paragraph 18 of Schedule 1 of the Civic Government (Scotland) Act 1982; finds the respondent liable to the appellant in the expenses of the cause, as taxed, and remits the accounts to the Auditor of Court to tax and report.
Note
Introduction
[1] I am grateful to the agents for both appellant and respondent for their helpful written submissions and a joint minute of admissions that provided a focus on the real issues in dispute. To that end, I did not require oral testimony or submissions.
[2] This is an appeal by way of summary application under paragraph 18 of Schedule 1 of the Civic Government (Scotland) Act 1982 (“the 1982 Act”). It concerns the respondent’s refusal to alter the conditions of the appellant’s taxi licence. The key facts have been agreed by way of joint minute, so do not need lengthy exposition. In short, the appellant is 59 years old, a taxi driver in Dundee and a disabled person in terms of section 6 of the Equality Act 2010 (“the Act”). He is the sole driver of his taxi and so does not employ anyone else to drive his vehicle when he is off-shift. He currently drives a Peugeot Partner Premier. This is a wheelchair accessible vehicle (“WAV”) and features on the respondent’s list of approved accessible vehicles (production three of the appellant’s inventory). The appellant has held a taxi licence issued by the respondent since July 2010. Since November 2003 it has been a condition of the respondent’s standard taxi licence (condition 32) to the effect that all new vehicles should be WAVs. The majority of licences granted prior to this date were saloon type vehicles. The respondent’s policy, refined following a public consultation in 2012, aims for a mixed fleet comprising around 60% WAV and 40% saloon. This allows for a plurality –WAVs to service the needs of certain disabled passengers – but recognises that some elderly and ambulant disabled passengers find saloons easier to access.
[3] By way of letter dated 14 June 2016, the appellant sought to vary the condition of his taxi licence to allow the substitution of his current WAV for a saloon-type vehicle. The reason for seeking this substitution was that he had suffered from severe back pain for several years. A letter dated 1 June 2016 from Dr Zeshan Shah of NHS Scotland’s Occupational Health & Safety Advisory Services (“OHSAS”) confirms that this pain is caused by arthritis in the lower spine, which has led to a narrowing of the appellant’s spine. Dr Shah’s conclusion, unchallenged by the respondent, is that the driving position of the appellant’s vehicle leads to the adoption of an awkward posture that aggravates this back pain. He concludes the same for the other list-approved WAVs, other than the TX1, TX2 and TX4 (i.e. traditional black taxis) which he deems unsuitable for the appellant on the basis of their rigid suspension system. He recommends that the appellant drive a saloon car to help him stay at work.
[4] The respondent considered this variation application at a meeting of its licensing committee on 1 September 2016. The appellant was represented by his solicitor, WG Boyle, who argued in favour of the application and drew the committee’s attention to the letters of the appellant and of Dr Shah.
[5] By letter of 2 September 2016, the appellant was notified of the respondent’s decision to refuse this application and of his right of appeal under the 1982 Act. The appellant sought a statement of reasons within the statutory period of 10 days under paragraph 17 of Schedule 1 of the 1982 Act within the 21 days provided by letter of 23 September 2016. No reasons were provided within the statutory period. A letter dated 31 October 2016 from the respondent’s licensing solicitor, Mr Woodcock, provided the committee’s reasons. There appears to have been no explanation for the delay. In any event, the letter noted the appellant’s attendance with representation at the meeting on 1 September 2016. It noted that the committee had been reminded of their Public Sector Equality Duty (“PSED”) under the Act and of their duty to makes reasonable adjustments to their practices or policies for people who share a protected characteristic, such as the appellant. The letter summarised the submissions made on behalf of the appellant and noted that Mr Boyle presented documentation which, “provided strong evidence in favour of granting the application”. The appellant’s medical issues, his ‘sole-driver’ status and his desire to continue operating a taxi were all highlighted. The respondent’s policy was noted but it was argued that granting the application, “would not do any violence to the policy”.
[6] The letter then summarised the committee’s questioning of the appellant. It was put to the appellant that a solution could be that he drive a saloon for someone else and/or find someone to drive his taxi. This was rejected by Mr Boyle on the basis that the appellant’s taxi was his business and he wishes to keep running it himself. There might be difficulties finding someone who would be willing to employ him as a driver. The suggestion that the appellant be given a private hire car licence, thereby allowing him to operate a saloon car as the condition does not apply, was also rejected by Mr Boyle on the grounds that it would not be fair to the appellant in the circumstances.
[7] The penultimate paragraph of the letter stated the committee’s conclusion and reasons. Having, it is stated, had regard to their duties under the Act, the committee unanimously rejected the application. As the reasons given go to the crux of the matter, I quote the letter verbatim:
“There are conditions attached to all Taxi Driver’s Licences that drivers are only obliged to give such assistance as they are able to give to disabled passengers in wheelchairs or otherwise in order to gain access to the vehicle. This would, at least, deal with any difficulties Mr Azhar has in that respect. The Committee felt that was a reasonable adjustment which had already been made.”
“Insofar as Mr Azhar’s difficulties in driving the vehicles are concerned, two alternatives had been put before him, namely, driving for someone else and/or converting to a Private Hire Car Licence which would allow him to operate saloon vehicles. The Committee was conscious that it was dealing with an application for variation of a Taxi Licence which is required to operate a vehicle and, notwithstanding Mr Azhar’s contention that he is the sole driver of the vehicle, by taking up the alternative of employing another driver, he would still be able to operate the vehicle, albeit he may not be driving it himself. By employing another driver, the Wheelchair Accessible Vehicle could be operated to comply with the intention of the policy which is to have around 60% of the taxi fleet made up of such vehicles and available for use. Also, there is nothing to prevent Mr Azhar driving a saloon car for another operator.”
“The Committee did not feel that it would be a reasonable adjustment simply to disapply the condition attached to Mr Azhar’s licence requiring him to operate a Wheelchair Accessible Vehicle in accordance with the Council’s policy, which policy is itself underpinned by the PSED.”
“There may have been the possibility that, if the Committee had been minded to grant the application, a condition could have been attached to the licence restricting any Saloon vehicle to being driven solely by Mr Azhar. However, it is not clear if such a condition would be either lawful or enforceable.”
Submissions
[8] The appellant and respondent provided helpful written submissions. These are available in process, should be referred to as required, and I deem them to be incorporated here for the sake of brevity. To aid the narrative, I will summarise the position that each party advanced.
The Appellant
[9] The appellant notes the respondent’s policy concerning WAVs and confirms that he is presently a holder of a licence governed by this policy. The appellant’s status as a disabled person for the purposes of the Act and the evidence that he suffers from back pain exacerbated by the use of a WAV is admitted by the respondent. His age of 59 and that the taxi is his only source of income is also admitted.
[10] The relevant provisions of the Act are: the definition of disability within the meaning of section 6; discrimination arising from disability under section 15; the duty to make reasonable adjustments under section 20; and the PSED under section 149. There is no dispute over whether the appellant is disabled for the purposes of section 6, nor is there a direct claim of discrimination under section 15, so they are noted only for context.
[11] It may be helpful to quote the relevant portion of the duties imposed by sections 20 and 149 on the respondent:
20 Duty to make adjustments
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.
149 Public sector equality duty
(1) A public authority must, in the exercise of its functions, have due regard to the need to—
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
…
(3) Having due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;
(b) take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it;
(c) encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
(4) The steps involved in meeting the needs of disabled persons that are different from the needs of persons who are not disabled include, in particular, steps to take account of disabled persons' disabilities.
(5) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves having due regard, in particular, to the need to—
(a) tackle prejudice, and
(b) promote understanding.
(6) Compliance with the duties in this section may involve treating some persons more favourably than others; but that is not to be taken as permitting conduct that would otherwise be prohibited by or under this Act.
(7) The relevant protected characteristics are—
age;
disability;
gender reassignment;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.
[12] The statement of reasons should be taken as the definitive reasons for the decision (Midlothian District Council v Kinnear 1993 GWD 3-1931). If the appellant were to get another person to drive his taxi, this would seriously diminish his income as he would have to pay for such a driver. Changing to a private hire car licence was an option that would restrict the appellant and would be unfair. There would be no guarantee that the appellant would get a job driving for someone else in a saloon car. Such restrictions, in light of the duties imposed by the Act, would themselves be discriminatory.
[13] The reasons given by the respondent do not take account of the PSED and are in any event wholly unreasonable and in certain parts irrational. The contention that there is a condition that obliges drivers only to give assistance to disabled persons such as they are able to is a ‘reasonable adjustment’ is entirely irrelevant. The principal point of the appellant’s application was the difficulty he had driving a WAV having regard to the high driving seat and posture, rather than the issue of helping disabled persons in and out of the vehicle.
[14] The reasons identify three possible alternatives: driving for someone else (effectively giving up his business); converting to a private hire car licence (a more restrictive licence); or employing someone to drive his WAV. Taking each in turn:
Driving for Someone Else
This would effectively mean the appellant giving up his taxi licence. The appellant would require to find a residual saloon taxi licence holder willing to let him drive his taxi, taking into account his disability. This is no adjustment. It is simply a postulation that the Appellant could do a different job for a different person. It does not have regard to the first requirement to make adjustment in terms of section 20(3) of the Act. Where a policy, criterion or practice (“PCP”), such as the respondent’s policy, places a disabled person at a substantial disadvantage in comparison with those who are not disabled, then such steps should be taken as are reasonable to avoid that disadvantage. Bearing in mind that the appellant is only one of hundreds of taxi licence holders within the City, such a reasonable adjustment would be to relax the policy for the appellant and allow him to drive a saloon vehicle. This would do no violence to the policy or substantially alter the position of disabled persons seeking to travel by taxi. The suggestion that the appellant effectively give up his taxi licence and seek alternative employment may be direct discrimination under section 13 of the Act because the respondent is treating the appellant less favourably than it treats others. In effect, it means if you are disabled and you cannot drive a taxi which falls within the approved WAV list then you should not hold a taxi licence. This cannot be a proper exercise of the PSED or general duties under the Act.
Conversion to a Private Hire Car Licence
The taxi licence allows drivers to pick up passing fares. At certain times this is a substantial advantage. Private hire cars require fares to be pre-arranged; they cannot pick up passing fares. The appellant does not work out of an office; he works on his own behalf. Whilst a private hire car licence would allow the appellant to operate a saloon car, it would significantly alter both the method of the appellant operating his business and his ability to earn. It is generally accepted that a taxi licence is more valuable than a private hire car licence standing the lesser restrictions on the former. There are difficulties with regard to the respondent’s duties under the Act which are broadly similar to those indicated in the first option.
Employing Someone Else to Drive
This would entail the appellant retaining his taxi licence but employing someone else to drive the WAV. There are difficulties with this. The appellant’s income is derived from the vehicle and if someone else were employed to do his job then this will result in a reduced income, if any income at all.
[15] The respondent’s argument that in considering the PSED in this case it has considered the needs of the general public and disabled passengers in particular is misconceived. The respondent has had scant regard to its duties under the Act to make reasonable adjustments for the appellant. The respondent has erred in law in this approach. The respondent has focussed on its policy and desire to keep the number of WAVs at approximately 60% of the fleet and not on the duty owed to the appellant. This error in law is sufficient to allow this appeal to be granted. In any event, the respondent’s reasoning is illogical and unreasonable.
[16] The respondent seeks to have around 60% of its fleet as WAVs; this is not an exact science or number critical. One licence equates to less than 0.2% of all licences granted in the licensing district. The variation would not cause material erosion to the policy and so a decision to refuse on this ground is wholly unreasonable and not one that a reasonable licensing committee, having considered the facts and circumstances, would reach (see Wordie Properties Co Ltd v Secretary of State for Scotland 1984 SLT 345). The respondents can apply their policy but must not do so in an irrational or unfair way (see Piper v Kyle and Carrick District Council 1988 SLT 267).
[17] The respondent accepts that the appellant is disabled and that driving a WAV exacerbates his condition. It is accepted that driving a saloon vehicle would reduce these problems. The respondent’s concern about the policy is unfounded. Such a variation has been allowed by other authorities (see Egan v Renfrewshire Council 2011 WL 825580 – of which the parties helpfully supplied a full copy). The appellant invites the court to reverse the decision and allow the variation of the licence. Expenses should follow success.
The Respondent
[18] The respondent accepts that certain duties are incumbent on it under the Act. The PSED requires it to have due regard to the factors set out in section 149 when making decisions or formulating policy. An omission of reference to the PSED will not render a decision invalid, but equally mere lip service will not render a decision immune from challenge. The decision maker must have, in substance, had due regard (see R. (Baker) v Secretary of State for Communities and Local Government [2008] EWHC Civ 141). The PSED is expressed in broad terms and does not dictate any particular outcome. It is not the duty to actually achieve these PSED objectives, but to have due regard to them while discharging its functions (R (Brown) v Secretary of State for Work and Pension [2008] EWHC 3158 (Admin)). There is scope for the public authority to have regard to countervailing factors that it is proper and reasonable for it to consider. The weight to be given to these factors is a matter for the public authority, provided that their assessment is not irrational or unreasonable. The respondent accepts that this process must involve a conscious approach and be exercised in substance, with rigour and an open mind. The respondent concedes that an incomplete or erroneous appreciation of the duty will inevitably mean that “due regard” has not been taken.
[19] The appellant’s application was not refused because of his disability; it was to implement a policy that seeks to maintain a high proportion of the taxi fleet as WAVs. The purpose of the policy is to fulfil the respondent’s PSED toward disabled passengers. The respondent took account of the appellant’s circumstances and balanced this against the wider purpose of the policy. The suggestion of alternative options was to avoid the appellant’s vehicle being withdrawn from service as a WAV, which would be in itself contrary to the policy. The respondent submits that the reasons for this decision are not irrational or unreasonable.
[20] The appellant contends that the granting of the application would amount to a reasonable adjustment in terms of section 20(3) of the Act. What is reasonable here is a question of fact and will depend on the whole circumstances of the case. The respondent submits that it would not have been a reasonable adjustment simply to grant the variation sought. The respondent points to the conditions of the appellant’s licence that only require him to render such assistance to disabled passengers as he is able to give. The respondent seeks to draw an analogy with the duties imposed by section 165 of the Act (criminal liability for failure to render assistance to disabled passengers by WAV taxi drivers). Drivers can apply for a personal exemption from these duties by way of section 166 of the Act. The vehicle remains a WAV. It is reasonable to conclude that exemptions from the WAV policy should be kept personal to the narrow and not diminish the WAV fleet.
[21] The respondent rejects the contention that the decision was based on the consideration of any incorrect material fact. This ground of appeal has no merit.
[22] The respondent submits that it has not acted unreasonably or erred in law in terms of the ground of appeal contained in the 1982 Act. All duties incumbent upon it under the Act have been fulfilled. It is not for the court to substitute its decision for that of the committee. The respondent gave careful consideration to all of the relevant factors. All of the information, including medical evidence, provided by the appellant, along with his solicitor’s representations, were considered. The countervailing factors, already referred to, were weighed against this. The appellant’s contention that to grant the application would have little or no effect on the provision of WAVs falls to be rejected; this would always be the case when discussing only one licence. The respondent relies on Wordie (cited above), Noble Organisation Ltd v City of Glasgow District Council 1991 SLT 213 and Ranachan v Renfrew District Council 1991 SLT 625.
[23] The respondent submits that there is nothing objectionable in maintaining a WAV policy, provided that the policy is not destructive of the statutory provisions under which the discretion is operated, is not so rigidly formulated that discretion is effectively disabled and that the committee is willing to listen to the circumstances of individuals who seek exemption (see Elder v Ross & Cromarty District Licensing Board 1990 SLT 307). The respondent considered the appellant’s case and had regard to his circumstances and the purposes of the policy, which is consistent with the statutory scheme. Discretion has been exercised in a proper manner.
[24] The respondent would distinguish the case of Egan relied upon by the appellant as the decision is directed against conditions attached to an exemption and not the exemption itself. Further, there was no suggestion, as in Egan, that the committee in this case did not make reference to its statutory duties in its decision. The case is, therefore, of no special significance to this appeal.
[25] The respondent invites the court to refuse the appeal. Alternatively, if the appeal is to be granted, the respondent invites the court to remit back to the committee for reconsideration on the basis that it will do so afresh and with an open mind. The respondent accepts that expenses should follow success.
Discussion and Decision
[26] This appeal may only be upheld if I consider that the respondent fulfilled one of the criteria in sub-paragraph 7 of paragraph 18 of Schedule 1 of the 1982 Act. The criteria are that, in taking its decision, the committee must have:
(a) erred in law;
(b) based their decision on any incorrect material fact;
(c) acted contrary to natural justice; or
(d) exercised their discretion in an unreasonable manner.
The appellant submits that the respondent erred in law, gave wholly unreasonable and irrational reasons and came to a decision that no reasonable licensing committee could reach, thereby exercising discretion in an unreasonable manner. The appellant’s submissions, therefore, rely on grounds (a) and (d). The respondent notes that the appellant’s pleadings also highlight a challenge on ground (b). This was, quite properly in my view, not insisted on in submissions by the appellant. The respondent, for its part, rejected the contention that the committee had fallen into legal error or exercised its discretion in an unreasonable manner. I will consider each of these grounds of appeal in turn.
Erred in Law
[27] The thrust of the appellant’s submission on ground (a) is, in effect, the respondent’s failure to make a reasonable adjustment in terms of section 20(3) of the Act. By failing to properly apply a structured approach to the duty to make reasonable adjustments, the respondent fell into error.
[28] I accept the appellant’s submission that the statement of reasons is to be treated as definitive and that it is not open to me to speculate or go behind these reasons (Midlothian District Council v Kinnear 1993 GWD 3-1931).
[29] When considering the duty to make a reasonable adjustment, I accept that is necessary for a decision maker to take a structured approach.
[30] Stage one is that it must be established that the appellant is a disabled person for the purposes of the Act. While the pleadings may suggest that this could have been doubted at some point, it is clear from both the joint minute, the statement of reasons and the respondent’s submissions that this is accepted.
[31] Stage two is that the correct PCP must be identified. There is no suggestion that the respondent’s taxi licence conditions, and in particular condition 32, do not amount to a PCP for the purposes of the Act.
[32] Stage three is that it must be shown that the effect of the PCP puts the appellant at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. Section 212(1) confirms that the word “substantial” in subsection 20(3) is interpreted to mean “more than minor or trivial”. I consider that the appellant has amply demonstrated that the application of this PCP to him will put him at a more than minor disadvantage compared to persons who are not disabled. Persons who are not disabled are not affected (or not in any way to the same degree) by the, to use Dr Shah’s description, awkward posture that WAVs can force a driver to adopt. By applying this PCP, the respondent effectively acknowledges that the appellant will no longer be able to drive his own vehicle. This, I conclude, puts the appellant at a substantial disadvantage compared to taxi drivers who do not share his disability.
[33] Where these conditions have been satisfied, the duty bites on the respondent. Having identified that the appellant is a disabled person who has been put at substantial disadvantage on account of its PCP, stage four is that the respondent is required to take such steps as it is reasonable to have to take to avoid the disadvantage. The approach favoured by the Employment Appeals Tribunal (see for example Justice Langstaff (President) in Secretary of State for Work and Pensions (JobCentre Plus) v Jamil, unreported, 2013 WL 7090826) at this stage in effect places an evidential burden on the respondent to demonstrate that the steps requested by the appellant are not reasonable. I consider this to be the correct approach. Once the duty has bitten, and a disabled person has proffered a prima facie reasonable adjustment, it is for the respondent to displace that burden.
[34] Bearing this in mind, at stage four there is a mandatory direction for the respondent to take action. What action is to be taken will, as the respondent accepts, require a careful consideration of all the facts and circumstances. The Equality and Human Rights Commission’s Code of Practice on Services, Public Functions and Associations notes (at paragraph 7.29) what will be reasonable may vary according to the type of service being provided; the nature of the service provider and its size and resources; and the effect of the disability on the individual disabled person. The Code further provides (at paragraph 7.30) a non-exhaustive list of some of the factors which might be taken into account when considering whether a step would be reasonable:
“• whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;
“• the extent to which it is practicable for the service provider to take the steps;
“• the financial and other costs of making the adjustment;
“• the extent of any disruption which taking the steps would cause;
“• the extent of the service provider's financial and other resources;
“• the amount of any resources already spent on making adjustments; and
“• the availability of financial or other assistance.”
For our purposes, there is no material distinction between service and public function and so, when taking the decision about what reasonable step the committee were required to take, these are the sort of considerations that should have been in the members’ minds.
[35] The respondent submits that the committee gave the appellant’s circumstances the most careful consideration and that, on the basis of Ranachan, their conclusion should not be lightly disturbed. However, in Ranachan the Second Division also makes it clear that this proceeds on the basis that the respondent, “did not take into account irrelevant material, or leave out of account relevant material and they made no error of law”.
[36] In my judgment the respondent fell into error by failing to properly approach their section 20 duty in a structured or rational manner, leading to the consideration of irrelevant factors. The identification of alternative business strategies that the appellant could pursue might, to an extent, go to the stage three question of whether the appellant is suffering from substantial disadvantage. The appellant’s submission that these alternative strategies would entail substantial disadvantage was not challenged by the respondent. I do not consider that the identification of other business avenues that the appellant could pursue has a material bearing on the question of what is reasonable for the respondent to do to ameliorate its PCP.
[37] At the stage four consideration of whether the step(s) identified are practical, it does not appear to me that the respondent asked itself the right questions. Taking the factors that the Code of Practice identifies, I consider that it is clear that relaxing condition 32 in the case of the appellant would be effective in overcoming the substantial disadvantage that he faces. It would be practicable and within the respondent’s power under paragraph 10 of Schedule 1 of the 1982 Act to grant such an exemption (and Egan demonstrates that such exemptions are not unprecedented). There is no submission that there is any negative financial implication to the respondent or that if there were the respondent would not be able to bear them. I do not detect from the statement of reasons that any of these considerations were in play.
[38] The only question potentially relevant to the stage four consideration that the committee appears to have asked itself was the extent of any disruption the step might cause. In this case, it amounts to analysing what impact the variation might have on the provision of WAVs in its licensing district. The appellant contends that it will have a negligible impact on the overall provision of WAVs, and in any event, the respondent’s desire for a mixed fleet of around 60% WAV, 40% saloon is not an exact science. Losing one WAV and the mix thereby dropping 0.2% will not have a material impact on the overall mixture. The respondent’s response to that is simply that when considering one licence the overall impact will necessarily be small. This rather goes without saying in my view and effectively concedes the appellant’s point.
[39] Furthermore, I entirely reject the respondent’s reasoning that condition 18 means that a reasonable adjustment has already been made or indeed that it is of any relevance to the question of whether the appellant should have his licence varied. I will leave aside for the moment that the concern of the appellant (and his physician) is with the driving position of WAVs, rather than the provision of help to passengers. The terms of condition 18, as I read them, appear to direct drivers to offer any assistance that they are able to disabled passengers. Although by implication this means that someone who is less able only need offer a level of assistance commensurate to their ability, to construe this as a “reasonable adjustment” is misconceived. It is simply an acknowledgement that drivers will have different physical capabilities, but they should do what they can to help a disabled passenger. Even if this were a reasonable adjustment, the duty to make reasonable adjustments is a continuous duty; the making of one adjustment does not satisfy the duty eternally. Thus, whether or not condition 18 is a reasonable adjustment, it does not bear on the question of whether the appellant’s variation would be reasonable and appears to have been another irrelevant consideration that led the respondent into legal error.
[40] I reject the respondent’s submissions concerning the analogy of a personal exemption under section 166 to the duties under section 165 of the Act. Leaving aside that the appellant is a ‘sole-driver’ and so any removal of the condition will in effect be a personal exemption, this analogy fails because section 165 imposes a personal criminal liability on a driver who fails to discharge the duties imposed on them under the section. A personal exemption is therefore appropriate. Moreover, it should be noted that the duties only apply to drivers of vehicles, whether taxi or private hire, which are “designated” under section 167 (i.e. on their local authority’s list of WAVs). So, if a vehicle is a WAV it is true that you cannot exempt the vehicle from the duties. But since the duties are only operative on drivers this is a matter of course. A WAV is unlikely to commit the offence of failing to load a wheelchair-using passenger’s luggage without the connivance of its driver.
[41] I accept the appellant’s submission that the respondent made no adjustment. The Equality and Human Rights Commission Code notes (at paragraph 7.39) that it will be a rare situation where, after a thorough consideration of all the options, there is genuinely no reasonable step that can be taken. I do not consider that the respondent found itself in this rare situation.
[42] The Code further notes (at paragraph 7.35) that:
“The purpose of taking the steps is to ensure that disabled people are not placed at a substantial disadvantage compared with non-disabled people when using a service. Where there is an adjustment that the service provider could reasonably put in place and which would remove or reduce the substantial disadvantage, it is not sufficient for the service provider to take some lesser step that would not render the service in as accessible a manner.”
I have received no submissions on either the process or the vires of the respondent simply substituting the appellant’s taxi licence for a private hire car licence and thus removing the WAV condition. Even if this were possible or desirable, I consider that this course would not sufficiently reduce the substantial disadvantage suffered by the appellant. Nor would it be a reasonable adjustment of the taxi licence policy. It is, therefore, another irrelevant consideration.
[43] The respondent, correctly, observes that the appellant is not seeking to challenge the lawfulness of the policy. Indeed, the appellant does not seek to have the condition removed from the entire fleet, merely from his licence. By focussing on adjustments that the appellant could make rather than on adjustments that it could make the respondent has misdirected itself as to the operation of the duty. The respondent’s submissions concerning the regard it had to its PSED and to the wider public are also irrelevant because they do not touch on the question of whether the step was reasonable. These submissions might be relevant to a challenge to the vires of the policy in toto. That is not the nature of this appeal.
[44] For the reasons laid out above, I find the respondent has fallen into error and that this error was sufficiently material to allow me to uphold the appeal.
Unreasonable Exercise of Discretion
[45] With that in mind, I need make no finding as to whether the respondent exercised its discretion unreasonably. I note the authorities provided by the respondent (Wordie, Noble, Ranachan) and accept that the respondent states the correct test: the decision must be so unreasonable that no reasonable authority could have reached it. I also note that the respondent’s submission attempts to conflate error of law and unreasonableness. I reject this approach. These are two distinct grounds. An error of law may be a sufficient condition to result in unreasonableness, but it is not a necessary one. I consider that if the respondent had properly applied its mind to the appropriate decision making process required by section 20(3), then any court would be slow to find that their conclusion was so unreasonable that no reasonable authority could have reached it. This is a high test. Given that I consider that the respondent did not properly apply its mind, however, the question is moot.
Disposal
[46] For the reasons given I uphold the appeal. I accept the submission of the respondent, however, that the correct procedure in the circumstances is that the matter should be remitted to the respondent’s licensing committee for reconsideration afresh. I trust that the committee will apply the decision-making process I have identified to properly discharge their obligations under section 20(3) of the Act. I anticipate that there may still be active discussions on different ways in which the committee might achieve a proper resolution and so I will simply note that I agree with the respondent’s prior conclusion in its statement of reasons that, were the committee minded to grant the variation as sought, the imposition of a further condition that the appellant continue as a ‘sole-driver’ would likely not be lawful or enforceable. As agreed, expenses follow success according to the usual rules.