Prescott v Birmingham Corporation
|England & Wales
|LORD JUSTICE JENKINS,LORD JUSTICE BIRKETT
|30 November 1954
|Judgment citation (vLex)
| EWCA Civ J1130-1
|1953 P. No. 7398.
|Court of Appeal
|30 November 1954
 EWCA Civ J1130-1
Master of the Rolls,
(Sir Raymond Evershed),
Lord Justice Jenkins and
Lord Justice Birkett,
In the Supreme Court of Judicature,
Court of Appeal.
Counsel for the Appellants: MR M.E. ROWE, O.B.E., Q.C., and MR H. LIGHTMAN, instructed by Messrs Sharpe, Pritchard & Co., Agents for Mr J.F. Gregg, Town Clerk of Birmingham.
Counsel for the Respondent: MR F. BLENNERHASSETT, instructed by Messrs Stanley & Co., Agents for Messrs R. Evans Parr & Co., Birmingham.
THE MASTER OF THE ROLLS: I will ask Lord Justice Jenkins to read the judgment of the Court.
This is an appeal by the Lord Mayor, Aldermen and Citizens of the City of Birmingham from a judgment of Mr Justice Varsey dated the 15th October, 1954, in an action brought against them by the Respondent Gregory Vincent Prescott, a ratepayer of the City of Birmingham, whereby the learned Judge made a declaration to the effect that a Scheme adopted and approved by the Defendants by resolution dated the 6th January, 1953, for the provision of free transport facilities for certain categories of old people mentioned in the Scheme was illegal as being beyond the powers of the Defendants.
Under certain Acts of Parliament, to which we will later refer, the Defendants own and operate a passenger road transport undertaking in the City of Birmingham, and are empowered to charge, as they normally do charge, fares to passengers travelling upon their vehicles.
At a meeting of the Defendants' Council held on the 14th October, 1952, it was resolved as follows: "41,967 … that this Council being of opinion it is desirable that women of the age of 65 years and over and men of the age of 70 years and over should have free use of the Corporation's public transport services between the hours of 10 a.m. and 4 p.m. on every day except Saturdays, the General Purposes Committee be, and they are hereby, requested … to submit to this Council as soon as possible a Scheme for the provision of such free travel facilities together with an estimate of the cost which it is intended shall be borne by the General Rate Fund."
At a further meeting of the Defendants' Council held on the 6th January, 1953, the General Purposes Committee submitted their Report, in which, after mentioningthat inquiries had been made of 25 Transport Authorities believed to be affording free or concessionary travel to old people, and referring to doubts which had been raised as to the legality of what was proposed, they dismissed on grounds of delay the possibility of obtaining by private Act of Parliament whatever additional powers might be necessary, and continued: "Seeing, however, that about twenty transport authorities are already operating various types of Schemes for the provision of free or concessionary travel for old people, and seeing that some of those schemes have been in operation for a number of years — so far as is known without challenge to their legality — your Committee are of opinion that effect should be given to the desire of the Council as expressed in resolution No. 41967, notwithstanding that there may not be specific statutory enabling power."
Then after calling attention to the necessity for approval of the Scheme by the Licensing Authorities under the Road Traffic Act, 1930, the Report Bets out the Committee's recommendations, the more material passages in which are the following: "1. Class of persons entitled to participate in the scheme. Although it is not laid down in Council Minute No. 41,967 your Committee think that it would be in accordance with the intention of the Council that the scheme should be limited to Old Age Pensioners being women of the age of 65 years and over and men of the age of 70 years and over and who are residing in the City.
"It appears that the term 'Old Age Pensioner' might well be taken to cover the under mentioned classes:-(a) Persons in receipt of a 'retirement pension' payable under the National Insurance Act, 1946, and, (b) persons in receipt of an Old Age Pension granted by the National Assistance Board under the Old Age Pensions Act, 1936, topersons who were not contributors to National Insurance.
"In addition to the above two classes of pensioners, your Committee consider that a further class of person is in a position of need which is at least equal to that of the pensioners. It is understood that certain persons, who are in receipt of neither of the above pensions, are granted assistance by the National Assistance Board by way of a weekly payment under an Order Book. Your sCommittee feel that persons in this category who are above the specified ages should be equally entitled to participate in the scheme.
"It is therefore recommended that the scheme be applied to all women of the age of 65 years and over and men of the age of 70 years and over who are either on the Register of Parliamentary Electors for the City or who otherwise satisfy the General Manager of the Transport Department of bona fide residence in the City and who come into the following categories:- (a) persons in receipt of a 'retirement pension' payable under the National Insurance Act, 1946; (b) persons in receipt of an Old Age Pension granted by the National Assistance Board under the Old Age Pensions Act, 1936, to persons who were not contributors to National Insurance; (c) persons in receipt of National Assistance payable by Order Book."
"2. Initial issue of passes. In the opinion of your Committee the most satisfactory method of operating the Scheme is by the issue of passes to the persons eligible …"
"3. Estimated Cost of Initial Issue of Passes…. Total: Approximately £3,100.
"4. Issue of Passes after Scheme is introduced. It is recommended that all applications for passes after the scheme is introduced be made in person and dealt with atthe Head Office of the Transport Department.
"It is estimated that at least 12,000 new and replacement passes will have to be issued annually(approximately 40 per day). This will require a staff of two but it is anticipated that they will also be able to deal with Scholars' Permits, Blind and Disabled Persons Passes, etc."
"7. Availability of Passes… "On the Dudley Road services jointly operated with the Birmingham and Midland Motor Omnibus Company Limited and in the case of that company's services partly or wholly operated within the City on behalf of the Corporation Transport Department which are subject to a financial agreement with the company, it will be necessary to arrange with them for the passes to be honoured within the City on these services and, possibly, to negotiate a financial adjustment to compensate for lose of revenue.
"With regard to the Dudley and Wednesbury services jointly operated with the West Bromwich Corporation, it will be necessary to arrange with them for the passes to be honoured on these services within the City."
"8. Cost of operating scheme. The estimated number of women of the age of 65 years and over and men of the age of 70 years and over in receipt of Government Old Age Pensions and residing in the City is 65,925, to which number must be added approximately 5,500 persons in receipt of National Assistance payable by Order Book. The proportion of the people in the three categories eligible to apply who will in fact apply can only be determined in the light of experience.
"It is also impossible to forecast what proportion of the free journeys taken by persons entitled to this concession will actually represent loss of revenue and what proportion will represent entirely new traffic, orto what extent it may become necessary to augment services, but it appears reasonable to assume that some augmentation will be inevitable, particularly during lunch hour periods and from approximately 3.30 p.m. to 4 p.m. weekdays and also on Sundays.
"In view of the impossibility of making precise estimates as to the cost, your Committee recommend that a sum of £90,000 be paid to the Transport Committee in consideration of their operating the scheme for a period of twelve months commencing 1st April, 1953, but that in the event of the scheme not being brought into operation until after that date, the said sum of £90,000 shall be reduced proportionately, and that the financial position be further reviewed at the expiration of that period when more reliable statistics are available."
The Report concludes with a summary of the Committee's recommendations substantially in the terms appearing from the following resolution which was passed at the same meeting of the Defendants' Council: " Resolved-42,085. That, subject to the approval of the Licensing Authority for Public Service Vehicles, the scheme, as more particularly referred to in the foregoing report, for the provision of free travel facilities for the categories of old people mentioned therein, be, and is hereby, approved and adopted with effect on and from 1st April, 1953, or as soon as possible thereafter; that a sum of £90,000 be transferred from the General Rate Fund to the Transport Committee in consideration of their operating the scheme for a period of twelve months from the 1st April, 1953 (provided that in the event of the scheme not being brought into operation until after that date, the said sum of £90,000 shall be reduced proportionately); that the financial position be further reviewed at the expiration ofthat period in the light of information then available; and that the Finance Committee be, and they are hereby, authorised and requested to make provision for this expenditure in their estimates for the ensuing financial year."
Such being the scheme the validity of which has been so far successfully disputed by the Plaintiff, we should next refer to the statutory powers relied on by the Defendants...
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