Thomas McNutt v Transport for London
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 21 February 2019 |
| Neutral Citation | [2019] EWHC 365 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4549/2018 |
| Date | 21 February 2019 |
[2019] EWHC 365 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
Case No: CO/4549/2018
Andrew Taylor (instructed by Michael Demidecki & Co) for the Appellant
David Patience (instructed by Transport for London) for the Respondent
Hearing dates: 13 February 2019
Approved Judgment
The Honourable
Introduction
This is an appeal by way of case stated against the decision of Hendon Magistrates Court on 23 May 2018 to find the Appellant, Thomas McNutt, guilty of the offence contrary to s 165(7) of the Equality Act 2010 (‘the EA 2010’). It raises an important point of statutory construction in relation to the duty pursuant to s 165(1)(a) and s 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair ‘not to make any additional charge for doing so’. By s 165(7), it is a criminal offence to make such an additional charge.
It is convenient at this point to set out the relevant statutory provisions. Section 165 provides:
“(1) This section imposes duties on the driver of a designated taxi which has been hired—
(a) by or for a disabled person who is in a wheelchair, or
(b) by another person who wishes to be accompanied by a disabled person who is in a wheelchair.
(2) This section also imposes duties on the driver of a designated private hire vehicle, if a person within paragraph (a) or (b) of subsection (1) has indicated to the driver that the person wishes to travel in the vehicle.
(3) For the purposes of this section—
(a) a taxi or private hire vehicle is ‘designated’ if it appears on a list maintained under section 167;
(b) ‘the passenger’ means the disabled person concerned.
(4) The duties are —
(a) to carry the passenger while in the wheelchair;
(b) not to make any additional charge for doing so;
(c) if the passenger chooses to sit in a passenger seat, to carry the wheelchair;
(d) to take such steps as are necessary to ensure that the passenger is carried in safety and reasonable comfort;
(e) to give the passenger such mobility assistance as is reasonably required.
(5) Mobility assistance is assistance—
(a) to enable the passenger to get into or out of the vehicle;
(b) if the passenger wishes to remain in the wheelchair, to enable the passenger to get into and out of the vehicle while in the wheelchair;
(c) to load the passenger's luggage into or out of the vehicle;
(d) if the passenger does not wish to remain in the wheelchair, to load the wheelchair into or out of the vehicle.
…
(7) A driver of a designated taxi or designated private hire vehicle commits an offence by failing to comply with a duty imposed on the driver by this section.
(8) A person guilty of an offence under subsection (7) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.”
The list maintained under s 167 mentioned in s 165(3)(a) is the list of wheelchair accessible vehicles kept by the relevant taxi licensing authority.
A taxi is defined by s 173(1)(a) to be a vehicle which is licensed under s 37 of the Town Police Clauses Act 1847 or s 6 of the Metropolitan Public Carriage Act 1869 (the 1869 Act). In simple terms, it means a vehicle plying for hire.
The factual background
The facts as set out in the stated case can be summarised as follows.
On the morning of 4 October 2017, the complainant, Emma Vogelman, who is a wheelchair user, went to a taxi rank. She was with her assistant, Laura Creek. The Appellant was the first driver on the rank. They sought to board his taxi. Before he unlocked the wheelchair ramp, and before the two women had boarded, the Appellant activated the taximeter fitted to his taxi. Ms Vogelman and Ms Creek noticed that the taximeter had been activated and Ms Creek challenged the Appellant about it, the point being that Ms Vogelman would be charged for the time it took to get her and her wheelchair into the taxi. There was then an altercation between the Appellant and Ms Vogelman and Ms Creek. The upshot was that the two women boarded another taxi driven by Graham Anmer. Ms Vogelman confirmed in her evidence that no money changed hands between her and the Appellant and she never got into his taxi. When Mr Anmer attempted to leave the Appellant prevented him using his taxi as he wanted their details. The police were called. Mr Anmer eventually drove the two women to their destination.
In due course the Appellant was interviewed under caution by Transport for London (TfL) (which, by virtue of Chapter II of Part IV of the Greater London Authority Act 1999, is the statutory taxi regulator in London) and he was then summonsed for the offence contrary to s 165(7) read with s 165(4)(b).
The Appellant pleaded not guilty and stood trial at the magistrates' court on 23 May 2018. Ms Vogelman, Ms Creek and Mr Anmer all gave evidence for the prosecution. At the conclusion of the prosecution's case the Appellant submitted that there was no case for him to answer. It was contended that the offence contrary to s 165(7) of breaching the duty under s 165(4)(b) was not made out until the exact point in time when the charge was levied, in other words, when the driver demanded payment. This could only be at the end of the journey. Here, no journey had been taken and therefore there could be no offence.
Counsel for TFL argued that this was a contrived interpretation of the legislation. If followed it would have the impact of seriously undermining the effectiveness and integrity of important legislation designed to promote equality. Whatever charge would be levied would be determined by the meter and this had been switched on.
According to the case stated, the magistrates decided that that the process of making an additional charge started at the point in time when the Appellant started his taximeter and that clearly the final required payment would include that period during which Ms Vogelman was boarding the vehicle. This is the type of situation that s 165 was meant to prevent. Accordingly, they found that there was a case to answer.
The Appellant then gave evidence. He accepted that he had switched on the meter before he had unlocked the ramp and before Ms Vogelman had boarded. The stated case observes that because the burden of the prosecution case was that the charging process commenced at the point in time when the Appellant had switched on the taximeter, and there was no dispute that had occurred, the extent of the disagreement between the Appellant and the prosecution witnesses was relatively peripheral. He also accepted that an altercation had ensued, but alleged that the two women had been more aggressive and provocative than he had been.
At the end of their deliberations the magistrates were of the view that the point in time when the making of the charge commenced was the point when the Appellant turned on his taximeter. Accordingly, they found the Appellant guilty. The stated case records their decision as follows (sic):
“Mr McNutt please stand. You are charged under the Equality Act 2010. s.165 of which states that a designated taxi driver should not make an additional charge for carrying a disabled person. By putting on your meter as you got out of your cab to unlock the ramp, it is apparent that it was your intention for the meter to keep running during the process of loading the wheelchair. This would lead to an additional charge to that which passenger without a disability would pay. It was your responsibility to keep up to date with changes in legislation and not being aware of changes to the law is not a defence. We therefore find you guilty beyond reasonable doubt.”
The Appellant was conditionally discharged for twelve months, ordered to pay costs of £1000 and compensation of £75 each to Ms Vogelman and Ms Creek, and the victim surcharge of £20.
I was told at the hearing that this was the first prosecution by the Respondent for the offence under s 165(7) for breach of the duty in s 165(4)(b), although there have been prosecutions of taxi drivers for refusing to carry disabled passengers.
Questions posed
The questions posed in the stated case for the opinion of the High Court are as follows:
(1) Did the Appellant make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017?
(2) Did the magistrates err in law by convicting the Defendant of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?
It is not in dispute that if the answer to the first question is ‘yes’ then the answer to the second question automatically follows and is ‘no’.
The parties' submissions
It is not in dispute between the parties that demanding payment from a wheelchair user for the time it takes to board the taxi would amount to the making of an additional charge for the purposes of s 165(4)(b) and s 165(7) of the EA 2010. This is consistent with what is said in Button on Taxis: Licensing Law and Practice (4 th Edn), [9.24]:
“It is important to consider the position of disabled and wheelchair bound passengers. The ‘journey’ does not commence until the passenger is securely seated, or the wheelchair has been correctly loaded and secured, the ramps have been properly stowed and the journey commences. If the meter commenced before the loading commences, and continues until the loading has finished, there is direct discrimination because the disabled passenger is being treated less favourably than an able-bodied passenger, contrary to s 13 of the Equality Act 2010.”
This is said in relation to hackney carriages outside London, but in my judgment the same is true within London.
The main issue on this appeal is whether a...
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