The current COVID-19 pandemic and necessary social restrictions present a fast changing legislative landscape. IoL President James Button, updates his previous article looking at the position of drivers carrying passengers, and also considers vehicle MOT's and licence renewals.

Can Hackney carriage and private hire drivers refuse to carry certain passengers through fear of infection?

The starting point here is that as there are no scheduled services for hackney carriages or private hire vehicles (unlike buses and trains) there is actually no requirement on a hackney carriage or private hire driver to be working. That is very simplistic approach, and it is appreciated that they need to make a living as much as everybody else. It will be for each individual driver to decide whether they are prepared to take the risks associated with providing hackney carriage and private hire services.

A great many people work in the hackney carriage and private hire industries and even more people rely on hackney carriages and private hire vehicles to transport them. Whilst there has been a significant downturn in this activity as a result of this crisis, hackney carriages and private hire vehicles will still remain a vital form of transport for many, including to and from hospitals, GPs and to go shopping.

In relation to the driver themselves, they should not work if they have a new continuous cough and/or a high fever and should at that point self isolate in line with Government guidance. The more detailed and draconian requirements issued on 23^rd March require all people to stay at home, but an exception is:

“Travelling to and from work, but only where this absolutely cannot be done from home.”

Key workers can continue to work (and are allowed to send their children to school). Key workers include a category referred to as “transport”:

“This includes those who will keep the air, water, road and rail passenger and freight transport modes operating during the COVID-19 response, including those working on transport systems through which supply chains pass.” (view guidance).

Hackney carriages and private hire vehicles do provide vital forms of transport for many, and drivers would appear to fall into this category.

On 25^th March the DFT issued the following information by email from Paul Elliott, the Policy Adviser in the DfT Buses & Taxis Division(and at the time of writing this it does not appear to be available on the gov.uk website).

“Taxis and private hire vehicles can continue to work. But the advice is absolutely clear - people should stay at home if possible. That is the way to save lives and protect our NHS. The public should avoid travel unless absolutely essential. The only reasons to leave our houses are set out in the government guidance.

Clearly if absolutely necessary to travel by taxi or private hire vehicle, best efforts should be used to follow the guidance as far as is practically possible, including washing your hands as soon as you get home.

Critical Worker Status

Taxi and private hire drivers should not generally be considered Critical Workers. Those undertaking Home to School transport or the transport of ‘extremely vulnerable’ people may be considered Critical Workers on a case-by-case basis. Critical Workers should also whenever possible make suitable arrangements for their children to stay at home; requests for children to attend school should be discussed with the school.”

The driver generally

Drivers of a hackney carriage or private hire vehicle, hackney carriage and private hire vehicle proprietors and private hire operators, whether self-employed or employees, have responsibilities under the Health and Safety at Work Act 1974 to both themselves and those who are likely to come into contact with their business (sections 2, 3 & 4).

Therefore, the driver and proprietor of the vehicle both have a responsibility to ensure, to the best of their ability, that the vehicle is safe. Whilst that usually relates to mechanical safety, clearly environmental safety is also vital. They should already have a Health and Safety Policy in place. It may have been necessary to amend this to incorporate a risk assessment relating to the coronavirus which clearly survives on surfaces for a significant period of time.

Ideally every vehicle should be disinfected after every hiring, but this is clearly not practically possible. However, it would be possible to ensure that some form of cleaning of obvious areas takes place - door handles, seat belts and buckles and any other obvious hard surface that may have been touched by a passenger. This would include areas that may have been infected following a passenger coughing or sneezing such as physical divisions between the front and rear of the vehicle, the rear of front seats and so on. The guidance from the Government is:

“frequently clean and disinfect objects and surfaces that are touched regularly, using your standard cleaning products”

Beyond that there is a divergence between hackney carriages and private hire vehicles.

Hackney Carriages

The driver of a hackney carriage that is standing for hire (that is at a taxi rank or elsewhere on the highway) can only refuse a hiring for a journey within the district if they have a reasonable excuse (section 53 Town Police Clauses Act 1847 (“the 1847 Act” outside London; section 35 London Hackney Carriage Act 1831 and section 7 London Hackney Carriage Act 1853 in London)). It would seem to be a reasonable excuse to refuse to carry a potential passenger who has obvious symptoms of coronavirus, but drivers must be careful. Assumptions about potential victims should not be made, and certainly should not be based on crude racial stereotyping. It would be difficult to see how a driver could refuse to carry a passenger who was not displaying symptoms in these circumstances.

In those circumstances (standing for hire) a driver can legitimately refuse to take any hiring which would be for a destination outside the district (unless there are local exemptions to that).

There is no requirement placed upon a hackney carriage driver who is plying for hire (i.e. cruising) to respond to any hailing by a prospective passenger (see Hunt v Morgan [1948] 2 All ER 1065 QBD).

Private Hire Vehicles

A private hire operator is under no obligation to enter into a contract to provide a private hire vehicle for anybody, provided any such refusal is not based on a protected characteristic under the Equality Act 2010 (section 4 - age; disability; gender reassignment; marriage and civil partnership; pregnancy and maternity; race; religion or belief; sex; sexual orientation).

Once the booking is been accepted, there is a contract in place to provide a vehicle for that hiring. If on arriving at the pickup point, the driver sees that the passenger is displaying obvious symptoms of coronavirus then they may feel it is not safe to carry that passenger. The driver would need to discuss that with the operator, because the contract for hire is between the hirer and the operator (there is also a contract between the operator and the driver which will need to be considered as well).

A pre-booked hackney carriage is similar to this, but the contract may have been made directly with the driver rather than a 3^rd party booking agent.

Conclusions

There is unlikely to be much demand for hackney carriage or private hire services in town centres relating to commercial activity (including the night-time economy) for the foreseeable future. However there will be significant activity to assist people to shop, attend hospital, and for the passenger go to work if that work is essential. It may also be the case that hackney and private hire vehicles will be used for local food deliveries where local shops can provide food and other essential items but do not have their own dedicated delivery service.

All these appear to be legitimate activities in these difficult and troubled times.

It must be appreciated that no activity is risk-free: the key is to follow the legal restrictions and Government guidance so far as is possible and practicable, and beyond that for drivers to take all sensible reasonable precautions to protect both themselves and passengers.

MOT Certificates

The government has announced that there will be an extension to existing MOT certificates for cars, vans and motorbikes from 30^th March. Any MOT expiring beyond that date will now be extended for 6 months.

I contacted Paul Elliott at the DfT and suggested that the legislation which will introduce this should also extend the period covered by any certificate of compliance issued by a local authority in respect of a hackney carriage or private hire vehicle. He responded very quickly and explained that the DFT view is that this would not be possible because the certificates of compliance are issued by local authorities under their own powers. He went on to say:

“The suggestion is that licensing authorities would be in the best position to take action on the issue, temporarily waiving the relevant licensing condition / byelaw or, where the vehicle licence itself is due to expire, by allowing the old licence to remain in force until such time as a vehicle examination can take place and a new certificate be issued.”

As far as I can establish it is each authority to determine how long a Certificate of Compliance that it issues lasts - some seem to be 6 months whilst others last 3 years. I can find no statutory information in relation to this. I do not think that an authority can simply waive a requirement for testing when the current certificate expires, partly because in many cases there is no MOT certificate in force as the certificate of compliance doubles up for the MOT. I think that an authority would need to issue at the very least some kind of covering note to explain that the certificate of compliance is now going to last for a further period.

Hackney carriage and private hire licences

All hackney carriage and private hire licences are granted for a limited period and need renewing. Those periods vary (a maximum of one year for a vehicle licence, 3 years for a driver’s licence and 5 years for an operator’s licence). Unlike many other renewable licences (e.g. sex establishments, paragraph 11(1) Schedule 3 and street trading licences paragraph 5(10) Schedule 4, Local Government (Miscellaneous Provisions) Act 1982) there is no statutory mechanism for renewal contained in the legislation, and therefore no statutory extension of the existing licence provided an application to renew has been made.

Again, I have asked the DFT whether this can be considered as part of the emergency legislation with the suggestion that all these licences should extend by 6 months in the same way as MOT’s. At the time of writing there has been no reply, and if and when one is received this article will be updated. In the meantime, local authorities will have to address this.

The existing licences will expire: in the absence of statutory provisions there is no mechanism for a local authority to extend the duration of any of those licences.

The most minimal approach would be to simply issue a new licence without any checks being undertaken. Whilst this would be possible, it would not discharge the authority’s statutory duties.

A local authority cannot grant a licence to a driver or private hire operator unless they are satisfied that they are a fit and proper person (sections 51(1)(a)(i), 59(1)(a)(i), 55(1)(a) Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act”). They cannot grant a private hire vehicle unless they are satisfied that the vehicle itself is “in a suitable mechanical condition and safe” (section 48(1)(a) 1976 Act), and whilst there is no equivalent provision relating to hackney carriages most authorities state in their policies that they will take the same approach. In addition, in respect of drivers and operators, they must demonstrate that they have the right to remain and work in the UK (sections 51(1)(a)(ii), 59(1)(a)(ii), 55(1)(b) 1976 Act).

It therefore seems that an application will have to be made in the conventional way (although this could be undertaken online) and the authority must satisfy itself as to the criteria being met before they can issue a renewed licence. In many cases this is going to prove impossible, and the consequence then is that the licence will expire and the driver, vehicle or operator will be unable to work. Any relaxation of these requirements by a local authority would appear to place the authority at risk of legal challenge and also, if a subsequent disaster occurs (an unroadworthy licensed vehicle crashes, a driver with fresh criminal convictions abuses a passenger) in a very difficult position.

This is something that must be addressed by the Government as a matter of urgency. It remains to be seen how they approach this.

Article provided by James Button.