Agenda item

To determine an application for a Private Hire Drivers Licence.

The Licensing Support Officer presented their report which asked members to determine an application for a Private Hire Drivers Licence.

The Driver addressed the Panel and said that they had been previously licensed in London and kept up their licence after ceasing active driving. They had moved into the property business but had agreed to assign the business to their separation, following their separation. They now hoped to return to their career in chauffeuring.

The Driver explained that they were a Type 1 diabetic and had received an endorsement for a CU80 mobile phone offence after checking their phone for a potential fluctuation in their blood sugar levels. Since the incident, they had installed a different monitor which was connected to their watch to eliminate the requirement to check their phone.

In response to questions from members, the Driver clarified the following:

·         There was a discrepancy between the addresses on their DVLA licence and application form as they were living in rented accommodation, should they reunite with their spouse.

·         Should they obtain a Licence, the Driver hoped to become self-employed but would initially help their friend, another taxi driver, with their Private Hire work.

Meeting adjourned between 14:10 and  reconvened at 14:24

DECISION NOTICE

The matter before the Panel today is an application for a new private hire driver’s licence. We have no information as to which operator the Driver proposes to drive for if successful, he hopes to become an owner driver. In the application form, the Driver disclosed that he had an endorsement on his driving licence in respect of a CU80 mobile phone offence, for which he had received six penalty points. We are charged with determining whether he is considered ‘fit and proper’ to hold such a licence.

We start with the law, namely Part II of the Local Government (Miscellaneous Provisions) Act 1976.

S 51 thereof states:

51(1) Subject to the provisions of this Part of the Act, a district council shall, on the receipt of an application from any person for the grant to that person of a licence to drive private hire vehicles, grant to that person a driver’s licence:

Provided that a district council shall not grant a licence

(a)  Unless they are satisfied

(i)            That the applicant is a fit and proper person to hold a driver’s licence.

S61 goes on to state:

A district council may suspend or revoke a driver’s licence for:

(a)  That since the grant of the licence he has-

(i)            Been convicted of an offence involving dishonesty, indecency or violence: or

(ii)          Been convicted of an offence under or has failed to comply with the provisions of the Act of 1847 or of this part of the Act: or

(b)  Any other reasonable cause.

In the event of a licence application being refused an applicant has the right of appeal to a Magistrates Court.

The Council has adopted the Institute of Licensing’s Guidance on determining the suitability of applicants in the hackney and private hire trades. This is considered to be a statement of best practice and is founded upon the premise that the aim of local authority licensing of the taxi and PHV trades is to protect the public.

More specifically, para 4.41 of the Institute’s Guidance is clear:

“Where an applicant has a conviction for using a hand held mobile telephone or a hand held device whilst driving, a licence will not be granted until at least five years have elapsed since the conviction or completion of any sentence or driving ban imposed, whichever is later.”

Para 4.39 deals more generally with motoring convictions and states:

“Hackney carriage and private hire drivers are professional drives charged with the responsibility of carrying the public. Any motoring conviction demonstrates a lack of professionalism and will be considered seriously. It is accepted that offences can be committed unintentionally, and a single occurrence of a minor traffic offence would not prohibit the grant of a licence or may not result in action against and existing licence. Subsequent convictions reinforce the fact that the licensee does not take their professional responsibilities seriously and is therefore not a safe and suitable person to be granted or retain a licence.”

This stance is supported within the Government’s mandatory Taxi and Private Hire Vehicle Standards, para 5.14 of which  provides that:-

“Licensing authorities have to make difficult decisions, but the safeguarding of the public is paramount. All decisions on the suitability of an applicant or licensee should be made on the balance of probability. This means that an applicant or licensee should not be given the benefit of the doubt. If the Sub-Committee or delegated officer is only 50/50 as to whether the applicant or licensee if fit and proper, they should not hold a licence. The threshold used here is lower than for a criminal conviction (that being beyond reasonable doubt) and can take into consideration conduct that has not resulted in a criminal conviction.”

Further, para 1.3 of this Council’s Suitability policy is clear:

“If a licence holder falls short of the fit and proper standard at any time the licence should be revoked or not renewed on application to do so”

Point 2.27 of the ‘Policy on deciding the suitability of applicants and licensees in the hackney and private hire trades’ goes on to state ‘Where an applicant has a conviction for using a hand-held mobile telephone or a hand-held device whilst driving, a licence will not be granted until at least 5 years have elapsed since the conviction or completion of any sentence or driving ban imposed, whichever is the later’

We have had the opportunity of reading the officer’s report in this case, a copy of which has been served on the Driver and we have also seen, as has he, the background documents annexed thereto. These include his DVLA Medical report and a letter from him explaining why he had been apprehended with the phone in his hand. We have read this carefully.

We have heard from the Driver and listened very carefully to what we have been told. We have been told that he was previously licensed in London and kept up his licence after ceasing active driving: he moved into the property business but has agreed to assign that business to his wife as part of a matrimonial settlement.

He also told us that he is a Type 1 diabetic and has been for most of his life. He used his phone to monitor his blood sugar levels and unfortunately on the day concerned when he picked it up to monitor a perceived fluctuation he was seen by the police with it in his hand and consequently apprehended. We have sympathy for him, but he was caught with the phone in his hand and therefore the key elements of the offence have been made out.

However, mobile phone offences are regarded very seriously by the legislature and by the Council given the number of serious accidents that occur as a result of this distraction. It does not matter whether the phone was being handled to take a call or for any other reason, the distraction remains the same. We have read all the papers before us most carefully and we have listened to what has been said to us.

In reaching our decision, we are mindful of the provisions of the Council’s Suitability Policy, a copy of which is before us. It states that the overriding aim of any Licensing Authority when carrying out its functions relating to the licensing of Hackney or Private Hire Drivers, Vehicle Proprietors and Operators must be the protection of the public and others who use (or can be affected by) Hackney Carriage and Private Hire services.

We agree.

Appendix A is more specific, and we quote the relevant provisions here:

2.2 It is important to recognise that once a licence has been granted, there is a continuing requirement on the part of the licensee to maintain their safety and suitability. The licensing authority has powers to take action against the holder of all types of licence (drivers, vehicle and operators) and it must be understood that any convictions or other actions on the part of the licensee which would have prevented them being granted a licence on initial application will lead to that licence being revoked.

2.7These guidelines do not replace the duty of the licensing authority to refuse to grant a licence where they are not satisfied that the applicant or licensee is a fit and proper person….

2.9 A driver has direct responsibility for the safety of their passengers, direct responsibility for the safety of other road users and significant control over passengers who are in the vehicle. As those passengers may be alone, and may also be vulnerable, any previous convictions or unacceptable behaviour will weigh heavily against a licence being granted or retained.

We take this responsibility seriously. The primary function of this Committee is the protection of the travelling public. The legislation makes this clear as does the case law and all authority in the area. Our role is to determine whether or not a person is a fit and proper person to hold a PHV licence, and if we consider that he is not, then our duty is clear – we should refuse the application. As we have already said, mobile phone offences are regarded so seriously that they have a discrete section of the Council’s policy dealing specifically with them.

We have carefully considered whether the Driver is a fit and proper person to hold an HC/PHV driver’s licence and sadly we have to conclude that he is not. More accidents occur over any given time period as a result of mobile phone usage than drink driving, and Parliament has tightened the parameters of the offence further to cover usage while the vehicle is stationary but the engine is running. We have heard what the Driver has had to say but the fact remains, even though he was not making or receiving a phone call and he now has another device fulfilling the same function, nevertheless he was caught and we cannot run the risk of a repeat offence. Sadly, we are left with no choice but to refuse this application. We regard mobile phone offences as being very serious given the incidence of accidents.

The Driver has a right of appeal to the Magistrates Court against this decision and this right must be exercised within 21 days of the date of our decision. He will receive a letter/email from the Licensing Department with a copy of our decision and explaining his appeal rights but we feel it right to warm him that the magistrates cannot grant a licence, all they may do is review the reasonableness of our decision and they will do so in the light of the documents we have quoted above.