Darlington Borough Council v Malcolm Kaye
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wilkie,MR JUSTICE WILKIE |
| Judgment Date | 07 December 2004 |
| Neutral Citation | [2004] EWHC 2836 (Admin) |
| Docket Number | Case No: CO/4746/2004 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 2004 |
[2004] EWHC 2836 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE WILKIE
Case No: CO/4746/2004
Sam Grodzinski (instructed by Darlington Borough Council) for the Appellant
Jill Brown (instructed by Rowley Ashworth) for the Respondent
This is an appeal by way of case stated from a decision made on 13 July 2004 by the Justices for the County of Durham. The Justices upheld the appeal by Mr Kaye against the refusal of the appellant council to renew his licence as a driver of a hackney carriage.
Factual background
The respondent has worked as a hackney carriage driver in Darlington since 1970. He has held a full driving licence for 35 years. He has never been the subject of a complaint from a passenger. In that 35 years of driving he has received one three point penalty on his licence arising from a speeding conviction dated 9 March 2002.
Each year the respondent is required to renew his licence to drive a hackney carriage. Prior to 2002 in order to do so he was required to complete an application form with details of his name and address, date of birth, and previous hackney carriage licence particulars. He was also required to submit a criminal record check signed by a solicitor and a medical certificate which had to be renewed every three years.
On a date in September 2002, the precise date being unclear, the appellant passed the following resolution:
a) That the council's current policy be amended to introduce the Driving Standards Agency taxi test as a pre requirement of any grant of hackney carriage and private hire driver licences for those drivers who have driven hackney carriages or private hire vehicles for less than six months together with experienced drivers who have allowed a licence to lapse, the proposed start date for this group of drivers being 4 November 2002.
b) The council's current policy be amended to introduce the Driving Standards Agency taxi test as a requirement for the renewal of all hackney carriage and private hire licences for those drivers whose medical and/or police check are due, the proposed start date for this group of drivers being 1 st April 2003.
c) That drivers be asked to pass the Driving Standard Agency test on one occasion only.
d) That the use of the Driver Improvement Scheme be approved as a disciplinary tool that may be used by the licensing committee as an alternative to suspension for drivers with nine or more penalty points or a history of poor driving, the proposed start date being the November 2002 licensing committee and that the Director of Development and Environment make the necessary arrangements to establish a referral system for taxi drivers to the Durham, or alternatively the Cleveland, national driver improvement scheme as outline in paragraph 30 of the submitted report.
The reasons annexed to the minute recording these decisions read as follows:-
a) To raise the standard pf driving skills for the benefit of all road users.
b) To provide reassurance to the public and the fare paying passengers that all drivers have achieved the necessary minimum professional standard of driving skill.
Before taking this decision the council conducted a public consultation exercise seeking the views of a representative sample both of the general public and of those in the trade. The outcome of that was a decisive majority of members of the general public in favour of such a change and an equally decisive majority of those in the trade opposed to such a change. The council had before it a report from the Director of Development and Environment which included the following paragraph:-
"The DSA have advised officers that there are currently twenty five local authorities using the DSA driver test and they are testing six hundred drivers per month. The pass rate average nationally is 48% (with a wide variation in pass rates in different areas – between 38% and 86%). This difference appears due to the preparation made by drivers. Licensing Officers in Leeds have advised that some of their private hire operators are employing advanced driving instructors to improve driver's skills in advance of the test and this has had the benefit of also reducing accident rates."
The magistrates had in evidence before them a document entitled "The Driving Standards Agency taxi driver test progress report". That showed the results of the taxi driver test from November 2002 through to March 2004. The figures showed, for each quarter, a pass rate ranging from 41% to 59%. This report updated the information which had been presented to the council. In particular it records that in 2003 to 2004 there were forty five local authorities using the DSA driver test and seven thousand drivers were tested with a pass rate of 50%. It goes on to say the DSA have indicated that the pass rate for taxi drivers could be significantly improved by drivers better preparing for the test. The council established in March 2003 a free driver assessment scheme with funding from the local transport plan. The written assessments are carried out by qualified advance driving instructors based in Darlington who have been placed on an approval list. Ninety seven of the one hundred and seventy seven vouchers issued in the twelve month period up to 1 April 2004 had been redeemed. The local pass rate is the same as the national average.
The report sets out in summary form objections to the DSA test. It says as follows:-
"The policy requiring all drivers to prove competence of driving skills by means of a DSA driver pass certificate continues to be viewed by many applicants to be an unnecessary and unreasonable burden. It is claimed that many drivers are leaving the trade rather than take the test. Private hire operators also claim that due to a general shortage of drivers they are unable to run the number of vehicles needed by customers particularly late at night."
That report also includes a section concerning issues associated with the implementation of the DSA test. It says as follows:-
"Officers implementing the policy routinely refused to renew driver licences where the applicant is unable to provide a DSA pass certificate. An existing driver, in such a position applying for a renewal, may formally appeal against the decision to the magistrates' court and the council is obliged to issue a licence until the appeal is heard. Most drivers following their appeal procedure have obtained a pass certificate and then withdrawn their appeal. One driver, Malcolm Kaye, declared that he will not take the test, and license renewal was refused is, with the support of his trade union, challenging the council policy by formally appealing to the courts."
The council, after an initial wrinkle, treated Mr Kaye's application to renew his license from 18 November 2003 as one which fell within the requirement that, pursuant to paragraph (b) of the resolution, in order to be granted needed to be supported by the production of a DSA pass certificate. Mr Kaye did not produce such a pass certificate, as he had decided not to take the test. Accordingly on 14 November 2003 the council wrote to Mr Kaye as follows:-
"As properly authorised officer of the council I have decided to refuse your application for grant of a hackney carriage driver license and the reason is:
The decision of the Magistrates' Court
The magistrates, as requested, have stated a case for the purposes of this appeal. The magistrates begin by setting out a statement of the facts which is similar to that which I have already set out and which was not in dispute. It set out the respective contentions of the appellant and respondent. The case for the appellant was that the requirement to supply a DSA pass certificate was a request for information which they reasonably considered necessary to enable them to determine whether the applicant was a fit and proper person to hold a hackney carriage driver's license. The respondent's submission was that the requirement for a DSA pass certificate was more than a request for information rather it was a condition attached to the grant of the license. The respondent relied on the authority of the case of Wathan v Neath and Port Talbot County Borough Council [2002] EWHC 1634(Admin) as authority for the proposition that a licensing authority is not permitted to attach conditions to the grant of a hackney carriage driver's license. The requirement that the applicant undertake a stringent test of his ability to drive amounted to more than a request for information, it amounted to a condition.
The magistrates formed the opinion that the requirement upon the respondent to supply a DSA pass certificate went further than a mere request for information and was in fact a condition upon the grant of hackney carriage driver's license. Their conclusion was that the requirement for a DSA pass certificate was unlawful and the evidence they had heard convinced them that the respondent was a fit and proper person to hold a license. Accordingly they upheld the complaint.
The magistrates formulated two questions for the opinion of the High Court. I set them out in reverse order to that in which they appear in the case stated as it appears to be more logical to do so. They were as follows:
b) Was the requirement to pass the DSA driving test a request for information as envisaged by section 57 Local Government (Miscellaneous Provisions) Act 1976 or did it amount to a condition to the grant of a license which must be fulfilled before the Borough...
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