Coutie v. Dundee City Council [2008] ScotCS CSIH

JUDGMENT OF SHERIFF R.A. DAVIDSON

B876/07 John Coutie

Dundee City Council

Act : Miss Buchanan

Alt: Woodcock

Dundee, 21^st. April, 2008,

The sheriff, having resumed consideration of the cause, refuses the first plea-in-law for the pursuer but sustains his second plea-in-law; repels the first and second pleas-in-law for the defenders; accordingly sustains the appeal, the defenders not having exercised the discretion conferred upon them in a reasonable manner; determines that it is not appropriate to remit the cause to the defenders for further reconsideration; deletes from the pursuer's taxi licence any requirement that he should put on service as a taxi a vehicle with European Whole Volume Type Approval; ordains the defenders to grant to him a taxi licence which does not require him to place on service any wheelchair accessible vehicle and otherwise unconditionally; finds the defenders liable to the pursuer in the expenses of the cause; allows the pursuer to prepare an account thereof and lodge same with the auditor of court to tax and to report.

NOTE

Statutory Provisions:

Civic Government (Scotland) Act esp. s.10, 13 and 20 and Schedule One

Paragraphs 5, 17 and 18.

"10. (1) A licence, to be known as a "taxi licence" or, as the case may be, a "private hire car licence," shall be required for the operation of a vehicle as

(a) a taxi; or

(b) a private hire car.

(2) A licensing authority shall not grant or renew a taxi licence or a private hire car licence unless they are satisfied that the vehicle to which the licence is to relate is suitable in type, size and design for use as a taxi or private hire car, as the case may be, and is safe for that use, and that there is in force such a policy of insurance or such security as complies with Part VI of the Road Traffic Act 1972.

(3).......................

(4) A vehicle shall, for the purposes of subsection (2) above, be treated by a licensing authority-

(a) as being suitable in type, size and design if it complies with regulations in that regard made by the Secretary of State under s. 20(2) of this Act in respect of their area and

(b) as not being so suitable if it does not so comply.

13. (1) A licence, to be known as a " taxi driver's licence," or, as the case may

be, a "private hire car driver's licence," shall , subject to subsection (2)

below, be required for driving or otherwise having charge of a taxi or

private hire car.

(2).................

(3) ...................

(4) A licensing authority may, at any time, for the purposes of satisfying

themselves that he is physically fit to drive a taxi or, as the case may

be, a private hire car, require an applicant for or the holder of a taxi

driver's licence or private hire car driver's licence to submit to medical

examination, at their expense, by a medical practitioner nominated by

them.

20.(1) Notwithstanding paragraph 5(2) of Schedule 1 to this Act, the

Secretary of State may by regulations provide that licensing authorities

shall, in relation to taxi, private hire car, taxi drivers' or private hire car

drivers' licences, impose such conditions or classes of conditions as

may be prescribed in regulations and shall not impose such other

conditions or classes of conditions as may be so prescribed and may

provide that such conditions shall be imposed or, as the case may be,

not imposed for different areas or classes of areas; and different

conditions or classes of conditions may be prescribed in relation to

different categories of taxi or private hire car.

(2) The Secretary of State may by regulations made by statutory

instrument prescribe types, sizes and designs of vehicles for the

purposes of Section 10(4) of this Act, and, in doing so, may prescribe

different types, sizes and designs of vehicles in respect of different

areas.

Schedule 1

Para. 5(1) Where an application for the grant or renewal of a licence has been made to a licensing authority they shall, in accordance with this paragraph -

(a) grant or renew the licence unconditionally;

(b) grant or renew the licence subject to conditions; or

Para 17(1) A licensing authority shall, within 10 days of being required to

do so under sub-paragraph (2) below, give reasons in writing for

arriving at any decision of theirs under this Schedule -

(a) to grant or renew a licence or to refuse to do so

(b) ...............................

Para. 18 (1) Subject to sub-paragraph (2) below, a person who may, under

this Schedule, require a licensing authority to give him reasons

for their decision may appeal to the sheriff against that

decision.

(7) The sheriff may uphold an appeal under this paragraph only if

he considers that the licensing authority, in arriving at their

decision, -

(a) erred in law;

(b) based their decision on any incorrect material fact;

(d) exercised their discretion in an unreasonable manner.

(9) On upholding an appeal under this paragraph, the sheriff may-

(a) remit the case with the reasons for his decision to the

licensing authority for reconsideration of their decision; or

(b) reverse or modify the decision of the authority."

Disability Discrimination Act, 1995 esp ss. 1, 4-6, 32, 36 and 39 :-

" 1. Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

4. - (1) It is unlawful for an employer to discriminate against a disabled person-

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs-

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(d) by dismissing him, or subjecting him to any other detriment.

(3) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless-

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

(4) In this Part "benefits" includes facilities and services.

(5) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.

(6) This section applies only in relation to employment at an establishment in Great Britain.

5. - (1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against a disabled person if-

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty.

(6) Regulations may make provision, for purposes of this section, as to circumstances in which-

(a) treatment is to be taken to be justified;

(b) failure to comply with a section 6 duty is to be taken to be justified;

(d) failure to comply with a section 6 duty is to be taken not to be

justified.

(7) Regulations under subsection (6) may, in particular-

(a) make provision by reference to the cost of affording any benefit; and

(b) in relation to benefits under occupational pension schemes, make provision with a view to enabling uniform rates of contributions to be maintained.

6. (1) Where-

(a) any arrangements made by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in

comparison with persons who are not disabled, it is the duty of the

employer to take such steps as it is reasonable, in all the circumstances of

the case, for him to have to take in order to prevent the arrangements or

feature having that effect.

(2) Subsection (1)(a) applies only in relation to-

(a) arrangements for determining to whom employment should be

offered;

(b) any term, condition or arrangements on which employment,

promotion, a transfer, training or any other benefit is offered or afforded.

(3) The following are examples of steps which an employer may

have to take in relation to a disabled person in order to comply with

subsection (1)-

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(d) altering his working hours;

(e) assigning him to a different place of work;

(f) allowing him to be absent during working hours for rehabilitation,

assessment or treatment;

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

(4) In determining whether it is reasonable for an employer to have to take

a particular step in order to comply with subsection (1), regard shall be

had, in particular, to-

(a) the extent to which taking the step would prevent the effect in

question;

(b) the extent to which it is practicable for the employer to take the step;

in taking the step and the extent to which taking it would disrupt any of

his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with

respect to taking the step.

This subsection is subject to any provision of regulations made under

subsection (8).

(5) In this section, "the disabled person concerned" means-

(a) in the case of arrangements for determining to whom employment

should be offered, any disabled person who is, or has notified the

employer that he may be, an applicant for that employment;

(b) in any other case, a disabled person who is-

(i) an applicant for the employment concerned; or

(ii) an employee of the employer concerned.

(6) Nothing in this section imposes any duty on an employer in relation to

a disabled person if the employer does not know, and could not reasonably

be expected to know-

(a) in the case of an applicant or potential applicant, that the disabled

person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected

in the way mentioned in subsection (1).

(7) Subject to the provisions of this section, nothing in this Part is to be

taken to require an employer to treat a disabled person more favourably

than he treats or would treat others.

(8) Regulations may make provision, for the purposes of subsection (1)-

(a) as to circumstances in which arrangements are, or a physical feature is,

to be taken to have the effect mentioned in that subsection;

(b) as to circumstances in which arrangements are not, or a physical

feature is not, to be taken to have that effect;

take steps of a prescribed description;

(d) as to steps which it is always reasonable for an employer to have to

take;

(e) as to circumstances in which it is not reasonable for an employer to

have to take steps of a prescribed description;

(f) as to steps which it is never reasonable for an employer to have to take;

(g) as to things which are to be treated as physical features;

(h) as to things which are not to be treated as such features.

(9) Regulations made under subsection (8)(c), (d), (e) or (f) may, in

particular, make provision by reference to the cost of taking the steps

concerned.

(10) Regulations may make provision adding to the duty imposed on

employers by this section, including provision of a kind which may be

made under subsection (8).

(11) This section does not apply in relation to any benefit under an

occupational pension scheme or any other benefit payable in money or

money's worth under a scheme or arrangement for the benefit of employees

in respect of-

(a) termination of service;

(b) retirement, old age or death;

(d) any other prescribed matter.

(12) This section imposes duties only for the purpose of determining

whether an employer has discriminated against a disabled person; and

accordingly a breach of any such duty is not actionable as such.

32. (1) The Secretary of State may make regulations ( "taxi accessibility regulations") for the purpose of securing that it is possible-

(a) for disabled persons-

(i) to get into and out of taxis in safety;

(ii)to be carried in taxis in safety and in reasonable comfort; and

(b) for disabled persons in wheelchairs-

(i) to be conveyed in safety into and out of taxis while remaining in their wheelchairs; and

(ii) to be carried in taxis in safety and in reasonable comfort while remaining in their wheelchairs.

(2) Taxi accessibility regulations may, in particular-

(a) require any regulated taxi to conform with provisions of the regulations as

to-

(i) the size of any door opening which is for the use of passengers;

(ii) the floor area of the passenger compartment;

(iii) the amount of headroom in the passenger compartment;

(iv) the fitting of restraining devices designed to ensure the stability of a wheelchair while the taxi is moving;

(b) require the driver of any regulated taxi which is plying for hire, or which has

been hired, to comply with provisions of the regulations as to the carrying of

ramps or other devices designed to facilitate the loading and unloading of

wheelchairs;

wheelchair is being carried (while remaining in his wheelchair) to comply with

provisions of the regulations as to the position in which the wheelchair is to be

secured.

(3) The driver of a regulated taxi which is plying for hire, or which has been

hired, is guilty of an offence if-

(a) he fails to comply with any requirement imposed on him by the regulations; or

(b) the taxi fails to conform with any provision of the regulations with which it is required to conform.

(4) A person who is guilty of such an offence is liable, on summary conviction, to

a fine not exceeding level 3 on the standard scale.

(5) In this section-

"passenger compartment" has such meaning as may be prescribed;

"regulated taxi" means any taxi to which the regulations are expressed to apply;

"taxi" means a vehicle licensed under-

(a) section 37 of the Town Police Clauses Act 1847, or

(b) section 6 of the Metropolitan Public Carriage Act 1869, but does not include a taxi which is drawn by a horse or other animal.

36. (1) This section imposes duties on the driver of a regulated taxi which has been

hired-

(a) by or for a disabled person who is in a wheelchair; or

(b) by a person who wishes such a disabled person to accompany him in the taxi.

(2) In this section-

"carry" means carry in the taxi concerned; and

"the passenger" means the disabled person concerned.

(3) The duties are-

(a) to carry the passenger while he remains in his wheelchair;

(b) not to make any additional charge for doing so;

(d) to take such steps as are necessary to ensure that the passenger is carried in safety and in reasonable comfort;

(e) to give such assistance as may be reasonably required-

(i) to enable the passenger to get into or out of the taxi;

(ii) if the passenger wishes to remain in his wheelchair, to enable

him to be conveyed into and out of the taxi while in his

wheelchair;

(iii) to load the passenger's luggage into or out of the taxi;

(iv) if the passenger does not wish to remain in his wheelchair, to

load the wheelchair into or out of the taxi.

(4) Nothing in this section is to be taken to require the driver of any taxi-

(a) except in the case of a taxi of a prescribed description, to carry more than one person in a wheelchair, or more than one wheelchair, on any one journey; or

(b) to carry any person in circumstances in which it would otherwise be lawful for him to refuse to carry that person.

(5) A driver of a regulated taxi who fails to comply with any duty imposed on him

by this section is guilty of an offence and liable, on summary conviction, to a

fine not exceeding level 3 on the standard scale.

(6) In any proceedings for an offence under this section, it is a defence for the

accused to show that, even though at the time of the alleged offence the taxi

conformed with those provisions of the taxi accessibility regulations with which

it was required to conform, it would not have been possible for the wheelchair in

question to be carried in safety in the taxi.

(7) If the licensing authority is satisfied that it is appropriate to exempt a person from the duties imposed by this section-

(a) on medical grounds, or

(b) on the ground that his physical condition makes it impossible or unreasonably difficult for him to comply with the duties imposed on drivers by this section,

it shall issue him with a certificate of exemption.

(8) A certificate of exemption shall be issued for such period as may be specified in the certificate.

(9) The driver of a regulated taxi is exempt from the duties imposed by this section if-

(a) a certificate of exemption issued to him under this section is in force; and

(b) the prescribed notice of his exemption is exhibited on the taxi in the

prescribed manner.

39. (1) Part II of the Civic Government (Scotland) Act 1982 (licensing and

regulation) is amended as follows.

Part II of the Civic Government (Scotland) Act, 1982, is amended as follows.

(2) In subsection (4) of section 10

(a) after "authority" insert "-(a)"; and

(b) at the end add

"; and

(b) as not being so suitable if it does not so comply."

(3) In section 20 (regulations relating to taxis), after subsection (2) insert

(2A) Without prejudice to the generality of subsections (1) and (2) above, regulations under those subsections may make such provision as appears to the Secretary of State to be necessary or expedient in relation to the carrying in taxis of disabled persons (within the meaning of section 1(2) of the Disability Discrimination Act 1995) and such provision may in particular prescribe-

(a) requirements as to the carriage of wheelchairs, guide dogs, hearing dogs and

other categories of dog;

(b) a date from which any such provision is to apply and the extent to which it is to

apply; and

and in this subsection-

"guide dog" means a dog which has been trained to guide a blind person;

"hearing dog" means a dog which has been trained to assist a deaf person; and

"other categories of dog" means such other categories of dog as the Secretary of State may prescribe, trained to assist disabled persons who have disabilities of such kinds as he may prescribe."

List of Authorities referred to:-

1. Ahmed v North Lanarkshire Council 1999 SLT 1064

2. Bass Inns & Taverns Limited v Glasgow District Licensing Board 1995 SC 226

3. British Oxygen Company Limited v Board of Trade [1971] 1 A.C. 610

4. Calderwood v Renfrewshire Council Inner House 3^rd. February, 2004

5. Elder v Ross & Cromarty District Licensing Board 1990 SLT 307

6. In re Finlay [1985] 1 A.C. 318

7. Loosefoot Entertainment Limited v City of Glasgow District Licensing Board 1991 SLT 843

8. Mirza v City of Glasgow Licensing Board 1996 SLT 1029

9. Noble v City of Glasgow District Council 1992 SLT 1315

10. Rex v Port of London Authority ex parte Kynoch Limited [1919] 1 K.B. 176

11. Wilson v Aberdeen City Council 2008 CSIH 8 - XA 186/06

12. Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345.

Factual Background

The pursuer applies to the court by way of summary application to "vary" the decision of the defenders of 16^th. August, 2007 by which they purported to grant to him a taxi licence subject to the condition that he would place in service i.e. use his licence for the operation of "a vehicle with European Whole Volume Type Approval" so that he could instead use a vehicle without European Whole Volume Type Approval. Alternatively, the court was asked to make such other order "proper for giving effect to this appeal." I have not thought it proper simply to grant the requested variation to avoid any risk to the pursuer of the defenders compelling him to operate any other type of wheelchair accessible taxi and have specifically ordained them not to do so.

2. Helpfully, Miss Buchanan and Mr. Woodcock had agreed the terms of a joint

minute of admissions which had the result that it was unnecessary to hear oral

evidence in this case. The background to the application is that the pursuer

already held a private hire car licence as prescribed by s.10 of the Civic

Government (Scotland) Act, 1982. The defenders' licensing committee are

the licensing authority for the issue of licences for both taxis and private hire

cars and for those who drive them. The pursuer had originally applied for a

taxi licence which was considered by the defenders on 7^th. September, 2006.

With that application, the pursuer submitted a hand written note by himself

and a brief letter from a Dr. Andrew Russell, who was his general

practitioner, the latter dated 26 May 2006, the gist of both of which

documents being that the pursuer had medical difficulties which would make

it difficult for him to assist wheelchair bound passengers.

The importance of this is that, with effect from 1^st April, 2005, the defenders had been operating a policy whereby all applicants for a new taxi licence would only get a licence, all other considerations being in order, if they agreed that the taxi to be operated would be one with European Whole Volume Type Approval. Prior to that, from November, 2003, their policy had been to allow applicants for a new taxi licence a licence conditional upon the taxi being either European Whole Volume Type Approval or Low Volume Type Approval, both of which types of vehicles could accommodate wheelchair bound passengers. There are now three categories of taxi licence holders in Dundee, namely, those who have held a licence prior to November, 2003, who may operate any vehicle provide its use as a taxi is approved, those obtaining their licences for the first time between November, 2003 and 1^st April, 2005 whose licences are conditional on them operating one of the two types of vehicles capable of carrying wheelchair bound passengers, and those obtaining their licences after 1^st. April, 2005, who are restricted to using European Whole Volume Type Approval vehicles.

The latter type of vehicle is said to be built to the highest specification for

accessible vehicles in terms of an unspecified EC Directive, and tend to cost in

the region of £20,000 to £30,000. The most common example of this type is

the "purpose built London taxi." The Low Volume Type vehicles are of a

lesser specification and are therefore less expensive but still more expensive

than the average saloon car, such as a Skoda Octavia, for which the defenders

had previously given approval for use as a taxi.

The pursuer was aware of the foregoing policy when he made his application

in 2006 and sought exemption from it on the basis of his own disability. He

attended the hearing of the defenders' committee on 7^th. September, 2006, and

made representations to the effect that he should be granted a taxi licence but

should not be required to operate a vehicle which would accommodate

wheelchair bound passengers as he was not physically capable of assisting

such passengers.

The defenders refused to vary their policy and granted the pursuer a licence

conditional upon his operating a taxi with European Whole Volume Type

Approval. His licence was sent to him on 13^th. September with a copy of the

conditions attached.

The pursuer appealed the defenders' decision to this court and requested a

"statement of reason" letter which the court directed the defenders to provide. Reference is made to their letter of 16^th. February, 2007. That letter records that the pursuer was personally present at the committee meeting on 7^th. September, 2006 and that he told the committee that he had sustained a back injury while serving in the armed forces, that he drove an automatic vehicle, that he did not employ a driver, but drove his private hire car himself, and that he was not registered as disabled. It further records that the committee having considered his application unanimously decided to grant the application but subject to its policy of requiring the provision of a taxi with European Whole Volume Type approval. It was explained that the "purpose of the policy is to ensure that as great a percentage as possible of the fleet of vehicles operating as taxis in the city are (wheelchair) accessible." The Committee was sympathetic to the pursuer's individual circumstances, but did not find them sufficiently exceptional to justify a departure from this policy. It was said that, "Although he has a medical condition which would prevent him personally offering much assistance to disabled passengers, there is nothing to prevent him employing other drivers to drive the vehicle and, in any event, he would not himself be required to offer assistance to wheelchair bound passengers given the terms of his taxi driver's licence which state that he is only bound to give such assistance as he is able to give in these circumstances."

The pursuer appealed to the sheriff against this decision and was successful,

despite opposition from the defenders. Sheriff T.G. Hughes determined the

application in favour of the pursuer and remitted the cause to the defenders,

with reasons, for reconsideration. While the sheriff did not spell out reasons

for the defenders to have regard to while reconsidering their decision, it is

perfectly clear from the terms of his decision that he regarded it as an

inappropriate exercise of the discretion conferred upon them to grant a taxi

licence to a person who suffered from a disability, subject to a condition that

he operate a wheelchair accessible taxi, when he was physically incapable of

facilitating access to such a vehicle for persons who were wheelchair bound,

which condition he could not meet unless he employed someone else, when

he had stated expressly that he intended to operate the taxi himself.

The application was reconsidered on 16^th. August, 2007. Once again, the

Pursuer was granted a taxi licence subject to the condition that the taxi was to be a vehicle with European Whole Volume Type approval, despite the pursuer's submissions that, on account of his physical limitations, the defenders should depart from their standard policy to take account of these, and his stated intention to drive the taxi himself and not employ anyone, and despite having the benefit of the judgment of Sheriff Hughes.

A statement of reasons letter was requested in relation to this second decision

and was issued, dated 11^th. September, 2007. The defenders once more recorded that the pursuer had a disability in the form of a chronic back disorder, that he would be unable to assist wheelchair using passengers and that his intention was that he would be the only driver of any taxi he was given a licence to drive and operate. The letter again states the policy operated by the defenders' licensing committee and states that, while sympathizing with the applicant, there was no reason why he could not employ another person to drive the vehicle. It was then said that the "Committee required to balance the wider interests of persons with disabilities which the policy is designed to address against the individual circumstances of the your client's case and felt that, on balance, it is the former which should prevail."

As at 27^th. December, 2007, there are 580 taxis operating in the Dundee City

Council area of which 78 have European Whole Volume Type Approval and

120 have Low Volume Type Approval i.e. 198 of 580 taxis are suitable for use

by wheelchair bound passengers. There was no evidence about demand from

wheelchair bound persons for taxis.

Condition 18 of the pursuer's taxi driver's licence is in the following terms:-

" 18. The driver of the taxi will offer such assistance as he is able to give to infirm, elderly or disabled passengers when required to do so including assistance with wheelchairs and access into and out of the vehicle and in this regard shall be required to undergo a course on disability awareness approved by the licensing authority." I observe in passing that I was not informed whether the pursuer had been on such a course.

Submissions for Pursuer:

Against the foregoing factual background, Miss Buchanan, for the pursuer, made the following submissions at the hearing on 18^th. March. She described the proceedings as an "appeal" relating to a "conditional grant" of a "yellow plate." The condition, to which exception was taken, required the pursuer to operate a "wheelchair accessible" taxi i.e. his taxi licence was made conditional to such operation. This conditional grant had been made on 16^th. August, 2007. The pursuer had had a private hire car licence ("white plate"). There had previously been an "appeal" by the same pursuer in April, 2007 before my colleague, Sheriff T.G. Hughes, which had been successful but he had remitted the application back to the defenders for reconsideration. The reconsideration on 16^th. August led to the same conclusion as that against which the previous appeal had been successful i.e. once more the appellant was granted a taxi licence subject to the condition that he operate a taxi which had European Whole Volume Type Approval i.e. would be a suitable vehicle for the conveyance of wheelchair bound passengers.

Her motion was that the appeal should be granted and that the court should grant the licence without sending it back to the defenders for further reconsideration.

She made reference to Schedule 1 to the Civic Government (Scotland) Act, 1982, as amended, and conceded that a licensing authority, such as the defenders, was entitled to grant or renew a licence "subject to conditions," having regard to the provisions of Paragraph 5(1)(b) of the Schedule. She also referred to Paragraph 5(2) which prescribes that:-

"Subject to sub-paragraph (2A) the conditions referred to in Paragraph (1)(b)

above shall be such reasonable conditions (other than conditions relating to

the amount of rent or other charges which may be imposed upon occupiers of

the house) as the licensing authority think fit, and, without prejudice to that

generality, may include -

(a) conditions restricting the validity of a licence to an area or areas specified in the licence; and

(b) in relation to the grant of a licence, where that licence is intended to replace an existing licence, a condition requiring the holder of the existing licence to surrender it in accordance with Paragraph 13 below."

I did not understand that it was any part of Miss Buchanan's submission that

the condition which the defenders purported to apply was, in general terms, a

condition which was incompetent, ultra vires the defenders or otherwise

unfair or inappropriate. Indeed she made reference to the judgment of an

Extra Division of the Inner House of the Court of Session in the case of

Wilson v Aberdeen City Council issued on 20^th. December, 2007 and bearing

the reference [2008] CSIH 8 XA186/06. In particular she referred me to

paragraph 4 of the judgment wherein the court observed that "we cannot be

other than wholly sympathetic to a policy which in the end, we accept,

envisages that the whole taxi fleet in the Aberdeen area will be wheelchair

accessible as, indeed, has already been achieved in other local authority areas

within Scotland." She did not, however, observe that these words were

preceded by the words, "All that said," and that under reference to paragraph

[3] of the judgment, doubt was cast on the defenders' submission that they

had unfettered discretion on account of the provisions of S.10(2) of the 1982

Act. I observe that there is no requirement in terms of Section 10(2) for any

vehicle intended to be used as a taxi to be wheelchair accessible and, as the

Inner House observed, there is an argument that the provisions cannot be

applied piecemeal or differentially as between identical vehicles but, on the

contrary, must be applied consistently to all taxis within the area covered by

the local authority.

In any event, Miss Buchanan appeared to accept that it was legitimate for a

licensing authority to have a policy in which they were entitled to prescribe

the type, size and design of vehicles to be used as taxis and she said that the way to address that was to require existing operators to upgrade their vehicles. I was a little confused by that submission as I understood the defenders' policy, as agreed at Paragraph 7 of the Joint Minute of Admissions, to apply only in the case of an application for the grant of a new taxi licence, which is a somewhat different situation from what she described. I may have misunderstood her submission.

The pursuer sought to challenge the defenders' decision on two bases, namely,

that it turned on an incorrect material fact and that they had not exercised their

discretion in a reasonable manner in considering his application.

The pursuer was aware of the policy but sought that there should be a

departure from it to take account of his particular circumstances, namely his physical disability. He wanted to be able to operate an ordinary saloon car. In their "reasons" letter of 16^th. August, 2006, the defenders had stated that it was for the pursuer to discharge the onus upon him to persuade them to depart from their policy. This was a misunderstanding of the approach which any licensing committee was required to adopt towards the exercise of discretion in relation to any application being considered. The outcome had been that, despite his submissions about his particular circumstances, supported by the information from his general practitioner, a condition had been imposed requiring him to operate using a European Whole Volume Type vehicle.

The pursuer's appeal against that decision had been successful. Sheriff Hughes

had determined that the pursuer's application had to be reconsidered by the defenders. In that decision, my colleague had allowed the appeal, not on the basis that the defenders had proceeded on the basis of any incorrect material fact, but on the basis that they had wrongly exercised their discretion in determining that, on the one hand, the pursuer was a fit and proper person to be the holder of a taxi licence, notwithstanding his disability, but that they would not depart from their policy of requiring all new applicants who were awarded taxi licences to be bound by a condition requiring the taxi placed on service to be of European Whole Volume Type, so that it could be wheelchair accessible, when the pursuer, on account of his disability, would not be able to operate such a vehicle himself, at least so far as assisting wheelchair bound passengers was concerned. It was significant that it had been made clear that the pursuer intended to operate the vehicle himself and did not intend to employ any other driver. There was no merit in requiring the pursuer to operate a wheelchair accessible vehicle when, on account of his physical disabilities, he could not do what was necessary to accommodate wheelchair bound passengers and would have to decline to convey them. He considered it "highly questionable" whether the defenders had properly considered the pursuer's argument against the rigid application of their policy in this case. Accordingly, he sustained the appeal.

It had been made clear, said Miss Buchanan, that the problem principally

pertained to the pursuer's inability to bend, on account of his disability. This

meant that he would be unable to secure wheelchairs in a position within a

wheelchair accessible vehicle which required the operator of the vehicle to

bend down to secure the wheelchair in position with clamps, to prevent the

wheelchair moving around while the vehicle was in motion, and to remove

the clamps at the conclusion of the journey. It also meant that he would be

unable to erect and dismantle ramps up and down which wheelchair bound

passengers would travel to get in and out of the vehicle. The defenders did not

dispute the pursuer's physical limitations.

The law in relation to licensing authorities having policies was set out

particularly in the Inner House decisions in Elder v Ross & Cromarty District

Licensing Board 1990 SLT 307 and Bass Inns & Taverns Limited v Glasgow District Licensing Board 1995 SC 226. The former related to what was arguably the special case of regular extension to the permitted hours for the operation of licensed premises wherein it was determined that a licensing board was at liberty to have a policy governing such applications provided it did not conflict with the statutory purpose of permitting the grant of regular extensions nor disable the board from exercising its statutory discretion in considering each application. In the latter case, the licensing board had a policy of not permitting more than one amusement with prizes machine per bar. The appellants had converted premises which had formerly comprised of a separate lounge bar and public bar in each of which there had been such a gaming machine into a single bar for which they made application for two such gaming machines on the basis that the premises had historically permits for two such machines. The respondents, however, insisted on the application of their policy of one permit for one machine per bar. It was held that it was in order for a licensing board to establish a policy, but they still had to hear an applicant who wished to submit that his application was one to which the policy should not apply and that, in giving their decision, the board should demonstrate that not only had they heard and considered the applicant's arguments in support of making his application an exception to the policy but, where it was appropriate to do so, having regard to the nature of the policy, also explained the reasons which had persuaded them not to grant his particular application after consideration of it. The court went on to hold that in this case the licensing board had given the applicants an opportunity to submit that the policy should not apply to their application, that the history of the premises was irrelevant where it was the applicants who had converted the premises, thus making them, in effect, new premises for licensing purposes, comprising a single bar, and the board had given sufficient reason for adhering to their one bar, one permit policy.

Miss Buchanan acknowledged that it would be argued that the defenders here

had had regard to the pursuer's particular circumstances as they had acknowledged that his physical limitations were not disputed. If the defenders had had proper regard to these limitations, however, they would have recognized that in the case of the pursuer, the policy could not be achieved as it was not physically possible for him to assist wheelchair bound passengers, given that the policy was intended to have in the licensing area as many taxis which could convey wheelchair bound passengers as possible. That policy would not be achieved by making the pursuer drive a wheelchair accessible taxi when he could not through his own physical disability secure wheelchair bound passengers in such a vehicle.

In the statement of reasons letter following the second decision of 11^th.

September, 2007, No.7 of process, the only explanation advanced by the

defenders for the maintenance of the policy in relation to the pursuer's

application was that there would be nothing to prevent him ultimately

employing another driver to drive the vehicle even though it is his current

intention to drive the vehicle himself. They took no account of the

observations of Sheriff Hughes in this respect.

In the record at Answer 5, it appeared that the defenders proposed to argue

that, in any event, all that was required of any taxi driver, in terms of Paragraph 18 of the conditions pertaining to licensing of taxi drivers, was that " the driver of a taxi will offer such assistance as he is able to give to infirm, elderly or disabled passengers when required to do so including assistance with wheelchairs and access into and out of the vehicle and in this regard shall be required to undergo a course on disability awareness approved by the licensing authority." The defenders appeared to be arguing that it was not relevant that he could not assist wheelchair bound passengers because he was only required to render such assistance as he was able to give. This would lead to the increased absurdity that the pursuer would be required to have a wheelchair accessible vehicle but would, in effect, be exempt from carrying wheelchair bound passengers because it was recognized that he could not assist them in and out of the vehicle.

Applying the policy to the pursuer would therefore not be an effective

application of the policy. In thinking that it would, the defenders had

materially misled themselves as to that fact, and the appeal should accordingly

be allowed.

In any event the defenders had not taken proper account of the pursuer's

physical limitations and difficulties when exercising their discretion on his

application and, in particular, whether this was a case where there should be a

departure from their stated policy. Had that discretion been properly applied, it

would have been obvious that it was not being exercised reasonably by

requiring as a condition of the issue of the licence that the pursuer should

operate a wheelchair accessible taxi when it was acknowledged that he could

not use it to convey wheelchair bound passengers on account of his own

disabilities which, while they would not preclude him from driving such a

vehicle, would prevent him from assisting wheelchair bound passengers in and

out of the vehicle, without which assistance they would not be able to access

and egress the vehicle, nor travel safely in it. On this basis also, the appeal

should be allowed.

Submissions for the defenders:

Mr. Woodcock for the defenders submitted that I should sustain the first and

second pleas-in-law for the defenders and repel the pursuer's two pleas-in-law.

He turned first to the appeal so far as based on the assertion that the decision

of the defenders was based on an incorrect material fact. He first referred me

to the decision in Loosefoot Entertainment Limited v City of Glasgow District

Licensing Board 1991 SLT 843. This related to an application for the

provisional grant of an entertainment licence for premises in Glasgow where

there were issues as to whether there was an overprovision of such facilities

and as to what constituted "Glasgow city centre" which had been the area used

by the licensing authority to determine the question of overprovision. One of

the issues about overprovision was into which category of licence the premises

ought to fall. The sheriff (G.H. Gordon Q.C.) had concluded that the authority

had not reached a conclusion which was unsupportable on the facts, nor had

they wrongly exercised their discretion in favour of the applicants and against

objectors. The test, said Mr. Woodcock, was set out at p.846 B-C of the

sheriff's judgment which judgment had been approved by the Inner House,

and was in the following terms, " It is open to me to accept that the board's

decision must be upheld in an appeal under s.39(4)(d) {of the Licensing

(Scotland) Act, 1976, as amended}unless it can be said to have acted in the

absence of any factual basis or that its decision was so unreasonable that no

reasonable board would have reached it or, of course, on the ground that it

took account of matters which it should not have taken into account and failed

to take into account matters which it should have taken into account: see the

Wednesbury case cited above."

He then referred to Wilson v Aberdeen City Council (supra) in which that

authority's policy in relation to the provision of wheelchair accessible taxis

was similar to that of the present defenders (though based on a different

approach as I understand this judgment) was described by Lord Marnoch,

giving the opinion of the court, as one with which the court could not be other

than "wholly sympathetic."

He then sought to deal with the submission that the operation of the policy in

the present case could be regarded as unreasonable. He referred to the

judgment in Elder v Ross & Cromarty District Licensing Board (supra) from

which he sought to draw the following propositions:-

(i) when exercising a discretionary power, a statutory body is entitled to adopt

a policy which it proposes to follow when examining applications, subject to

its discretionary powers;

(ii) any such policy must not be applied rigidly and inflexibly without

considering the individual circumstances of the application and the

applicant;

(iii) there is a practical onus on those who seek a departure from the policy to

justify doing so; and

(iv) a pursuer in an application to the court such as the present which includes a request to depart from a policy will require to show that no reasonable committee would have come to that conclusion on the information that was before it.

It was accordingly in order to have a policy so long as the committee

continued to exercise discretion in relation to each application especially where a departure from the policy was requested. He referred to Ahmed v

North Lanarkshire Council 1999 SLT 1064 and to Calderwood v Renfreshire Council a decision of an Extra Division of the Inner House of 3^rd. February, 2004. The latter was an illustration of the practical onus being upon the pursuer. In Ahmed, there was an illustration of the test of reasonableness set out in the Loosefoot case.

32. Mr. Woodcock then made reference to the Disability Discrimination Act,

1995, all the while acknowledging that the parts to which he proposed to refer

were not in force and some of which did not apply to Scotland. He referred to

S.36 which relates to the carrying of passengers in wheelchairs in taxis.

Despite the foregoing limitations on the value of this reference, it is worth

observing that the provisions, if in effect, would, inter alia, require a taxi

driver to carry the passenger in the passenger's wheelchair, to make no

additional charge for doing so, to carry the wheelchair if the passenger elects

to sit in a vehicle seat, to take such steps as are necessary to ensure that the

passenger is carried in safety and in reasonable comfort and to give such

assistance as may be reasonably required to enable the passenger to get into or

out of the vehicle, whether or not in his wheelchair, to load the passenger's

luggage into or out of the taxi and to load the wheelchair in and out of the taxi

where the passenger does not with to remain in his wheelchair. He also

referred to subsection (7) for certificates of exemption on medical grounds for

performing the above duties. This is of some consequence as a taxi driver

who fails to comply with any of the foresaid duties will be guilty of a criminal

offence. I was not referred to the definition of "regulated taxi." I observe,

however, that in S.32 of the Act that power is to be given to the appropriate

UK government minister, so far as concerns England and Wales, to make "taxi

accessibility regulations" which will regulate the specification of any

regulated taxi, require its driver to carry ramps and require the driver to have

some means of securing the wheelchair in position. A "regulated taxi" will be

a taxi to which the regulations apply and it is not evident to me that the

regulations will apply to all taxis, though the only stated exemption is for

horse drawn taxis, a form of transport which is unlikely to find much favour in

Dundee. Otherwise a taxi is just a vehicle licensed to be a taxi.

He also referred to S. 39 of the 1995 Act which is also not in force but which

proposes amendment to the Civic Government (Scotland) Act, 1982. This being a UK statute, I presume that provisions relating to disabled persons are reserved matters. The intention appears to me to permit amendment of the 1982 Act so that the Secretary of State can make regulations about the carriage of wheelchairs, a date from which that will be required and exemptions from so doing, the exemptions to be in respect of any "taxi or taxi driver." Again it is not clear that the intention is that all taxis will henceforth require to be wheelchair accessible. Certainly nothing in the statute suggests that a taxi driver who might be able to claim exemption from having to assist wheelchair bound passengers would nonetheless be obliged to have a wheelchair accessible taxi.

Mr. Woodcock further observed that the argument advanced by the pursuer

proceeded on the hypothesis that wheelchair bound passengers commonly

travelled by taxi on their own, whereas the reality was that most such

passengers would be accompanied by someone. He did not however assert,

nor could he, that such accompaniment could deal with ramps and clamps to

get wheelchairs in and out of taxis and to secure them during travel. So the

observation otherwise is of little, if any, value.

As was clear from the "statement of reasons" letter of 11^th. September, 2007,

the position of the defenders was that account had been taken of the

circumstances of the pursuer but that his personal circumstances did not

amount to a reason for departing from the policy. It seemed odd then to place

reliance on prospective statutory provisions which included a system of

exemptions for taxi drivers who could not undertake the proposed duties to

assist disabled people on account of their own frailties. The same could be said

about the argument advanced by Mr. Woodcock that an unscrupulous person

could get round the policy by claiming to have a disability and then employing

an able bodied person. Leaving aside the question of the continuing fitness and

propriety to hold a licence of anyone who so misled a licensing committee, the

committee would be well able to make conditions to prevent such an

occurrence.

In any event, said Mr. Woodcock, the pursuer had had the opportunity of

presenting his application and explaining why he should be exempt from the

application of the policy and the defenders had, in turn, explained their reasons

for not exercising discretion in favour of departing from the policy, namely

that the pursuer would be able to employ an able bodied driver. The reasons

given were no more expansive in the Calderwood case. I was also directed to

the judgment of Lord Wheatley in Adams v South Lanarkshire Council in

respect of which decision of 20^th. November, 2001, the report offered to me

was contained in a publication known as "Scottish Licensing Law and

Practice" at page 10 of the issue from February, 2002.

With regard to the disposal, if I was not in favour of sustaining his pleas-in-

law, then I should remit the application once more back to the licensing

committee for reconsideration with reasons for doing so. It was the agency

with the statutory responsibility for determining who should be granted a

licence and subject to what conditions.

He was content that expenses should follow success.

In a brief response, Miss Buchanan submitted that I should pay no regard to

the provisions of the Disability Discrimination Act, 1995 which did not apply

to Scotland and which were not in force. She forcefully observed that there

was no reference in the pleadings to any reliance being placed on these

prospective statutory provisions which might never be brought into force. For

what it was worth, however, it appeared that the pursuer would be able to

obtain exemption from their operation on account of his disability. She also

observed that the defenders had all along accepted that the pursuer did not

employ another driver and had no intention of doing so, so that basing their

decision on the possibility that he might was a further unfairness in the

exercise of their statutory discretion.

The Law

The regulation of applications for licences for taxis, private hire cars, taxi

drivers and drivers of private hire cars and the operation of such vehicles is set

out in the provisions of Sections 10 - 23 of the Civic Government (Scotland)

Act, 1982, as amended. Section 10(1) requires that a licence is required for the

operation of both taxis and private hire cars. S.10(2) provides that a licensing

authority shall not grant or renew either form of licence unless they are

satisfied that the vehicle to which the licence is to relate is suitable in type,

size and design for use as a taxi or private hire car, as the case may be, is safe

for that use and is appropriately insured for that use. A vehicle will be suitable

if it complies with regulations made by "the Secretary of State" under s. 20(2)

of the Act. Section 20(1) gives discretion to the Secretary of State to provide

regulations by which licensing authorities may prescribe conditions or classes

of conditions for licences for taxis or private hire cars and for drivers of each

type of vehicle and may not prescribe other conditions. Section 20(2) gives to

the Secretary of State power to make regulations by statutory instrument

prescribing the size, type and design of vehicles for the purposes of S. 10(4).

Section 10(4) in turn provides that a vehicle shall be treated by a licensing

authority as being suitable in type, size and design if it complies with

regulations in that regard made by the Secretary of State under S. 20(2) of this

Act in respect of their area. This at least raises the question whether it is intra

vires the licensing authority to usurp the function of the Secretary of State.

Apparently, no such regulations have been prescribed under s. 20(2) and the

only regulations prescribed under S.20(1) are the Licensing and Regulation of

Taxis and Private Hire Cars and their Drivers (Prohibited and Required

Conditions)(Scotland) Regulations, S.I 1986/1238 but none of the provisions

of these regulations relate to the type of vehicle which may be used. There is

a note at para. E2.2.55 of the Parliament House Book, Part 6, pertaining to

S.20(2) which suggests that the power given to the Secretary of State is

intended as a reserve power to be used in addition to the licensing authorities'

powers under s. 10(2) only if there is evidence of the specification by licensing

authorities of unnecessarily expensive vehicle types in particular areas, which

power has not so far been utilised. It however appears to me reading sections

10(2) and (4) and 20(2) that what the legislature intended was that the

Secretary of State should determine generally what types of vehicles could be

used as taxis, leaving it to licensing committees to determine whether the

particular vehicle proposed by a particular applicant was one of the approved

type.

Be that as it may, what is also clear, though only by inference from paragraph

27 of the Joint Minute of Admissions, is that the defenders have granted to the

pursuer a taxi driver's licence, the provisions in relation to which are set out in S.13 of the 1982 Act. S.13(4) permits a licensing authority to require an applicant for such a licence to submit to a medical examination, at their expense, by a medical practitioner nominated by them. It is, accordingly, a reasonable inference that they considered that the pursuer was medically fit to be a taxi driver when they granted him a licence, notwithstanding his disability. Presumably a taxi driver's licence would not be granted to a person who was not considered medically fit to drive a taxi. Having regard to the provisions of Para. 5 of Schedule One to the Act, it is also reasonable to infer that the applicant was considered to be a fit and proper person to be the holder of a taxi driver's licence, as well as the holder of a taxi licence.

There is no doubt that paragraph 5 of Schedule One permits a licensing

authority to grant or renew a licence subject to conditions, which conditions must be reasonable and not relate to any matter on which the making of conditions is prohibited by regulations made under s. 20(1). There is therefore a question whether in the particular circumstances of this case, it was reasonable, since that involves a discretionary exercise, to impose on the pursuer, who had been determined to be a suitable person to hold both a taxi licence and a taxi driver's licence, notwithstanding his disability, a condition requiring him to operate a wheelchair accessible taxi when the defenders had been made aware that his disability would prevent him being able to utilise ramps need to load wheelchairs into the vehicle and to secure clamps to keep them in position while in transit. In my opinion, prima facie, that is not a reasonable condition and not therefore a reasonable exercise of the statutory discretion conferred upon the defenders.

Para. 17 of Schedule One to the 1982 Act defines, by virtue of the provisions of Para. 18(1) what decisions of a licensing authority may be appealed. That includes any decision to grant a licence and, at least by inference, that must include any decision to grant a licence subject to conditions. By paragraph 18(7) the power of the sheriff is restricted to upholding an appeal where he considers that the licensing authority in reaching its decision (a) erred in law (b) based their decision on any incorrect material fact (c) acted contrary to natural justice or (d) exercised their discretion in an unreasonable manner.

As I have said in Para. 41, prima facie in imposing the condition which they

did, the defenders have exercised their discretion in an unreasonable manner and the appeal should accordingly be upheld. However, it is said on behalf of the defenders that in applying the particular condition which they purported to apply, the defenders were maintaining a policy which had as its purpose to ensure that there were as many wheelchair accessible vehicles operating within Dundee as possible. While compelling the pursuer to have a wheelchair accessible vehicle would add one more such vehicle to the stock, since he was physically incapable of operating it as such, it is somewhat difficult to see how this application of this condition enhances what must be the real point of the policy which must be to make as many vehicles available for use by wheelchair bound passengers as possible.

There are a number of decisions about the operation of policies by licensing

authorities. Before considering them it is essential to be clear what the defenders said in relation to that policy in support of their decision which is now the subject of this appeal. That is contained in their letter to the pursuer's solicitors of 11^th. September, 2007. They say, firstly, that the defenders had previously granted the pursuer a taxi licence on 7^th. September, 2006, "subject to its normal policy condition that he place an accessible vehicle on service." Later it is said, "Having considered the submission by [the pursuer's solicitor], together with the attached documentation (which related to the pursuer's medical condition) and also taking into account the comments made by the Sheriff in the course of the previous appeal, the Committee once again decided unanimously to grant the application, but subject to the policy that your client places on service a vehicle with European Whole Volume Type Approval. As your client is aware from the previous application in September, 2006, the Committee introduced this policy in November, 2003 to require all applicants for new licences to place accessible vehicles on service, which policy has been subsequently amended to restrict new licences to those applicants who are prepared to place vehicles on service with European Whole Volume Type Approval. The purpose of the policy is to ensure that as great a percentage as possible of the fleet of vehicles operating as taxis in the City are accessible. The Committee were sympathetic to the Pursuer's individual circumstances, but did not find them sufficiently exceptional to justify departing from this policy. The Committee gave consideration to his explanation that he would be unable to offer any assistance to disabled passengers due to his own medical condition and that this could place him in some difficulty in terms of accepting wheelchair users as passengers. However, there would be nothing to prevent him ultimately employing another driver to drive the vehicle, even though it is his current intention to drive the vehicle himself. The Committee required to balance the wider interests of persons with disabilities which the policy is designed to address against the individual circumstances of your client's case and felt that, on balance, it is the former which should prevail. Accordingly, the Committee did not find there to be sufficient reason for departing from its policy, namely that he place on service a vehicle with European Whole Volume Type Approval."

The law in relation to the adequacy of the contents of such a statement of

reasons letter is to be found in the decisions in Wordie Property Company

Limited vThe Secretary for State for Scotland 1984 SLT 345 and Mirza v City

of Glasgow Licensing Board 1996 SLT 1029. In the former, Lord President

Emslie said that "All that requires to be said is that in order to comply with the

statutory duty imposed upon him the Secretary of State must give proper and

adequate reasons for his decision which deal with the substantial questions in

issue in an intelligible way. The decision must, in short, leave the informed

reader and the court in no real and substantial doubt as to what the reasons for

it were and what were the material considerations which were taken into

account in reaching it." It is not suggested in the present case that this

statement of reasons letter is in any way inadequate in setting forth the reasons

why the defenders reached the conclusion which they did nor it seems to me

could any such criticism have been successfully made. The terms of the letter

are quite clear. It refers to the history of the pursuer's applications and to the

earlier successful appeal to the sheriff. It acknowledges the remit for

reconsideration. It notes the effect on the operation of a wheelchair accessible

taxi of the pursuer's disability. It notes that it is not the intention of the pursuer

to employ another driver and it notes the contents of the supporting documents

pertaining to the pursuer's disability. It records the submissions made on

behalf of the pursuer, the contents of the documents and the comments made

by the sheriff in the course of the previous appeal. It then intimates that the

decision was nonetheless to adhere to the defenders' stated policy of requiring

all recipients of new taxi licences to place on service a European Whole

Volume Type Approval vehicle. It sets out the reason for the policy, namely to

have as many wheelchair accessible taxis as possible in Dundee. It notes the

pursuer's particular problems and says it considered them but did not find

them sufficiently exceptional to justify a departure from the policy. It noted

that there would be nothing to prevent the pursuer employing another driver,

notwithstanding his current stated intention. It says that the defenders, in the

exercise of their discretion, had to undertake a balancing exercise and

concluded that the merits of the maintenance of the policy for the benefit of

wheelchair bound persons outweighed the perceived disadvantage to the

pursuer. It simply cannot be said that the reasons for their decision are unclear

or inadequate. Reference was made to Noble v City of Glasgow District

Council 1992 SLT 1315 in this context.

In relation to the law on the application of a policy by an administrative body

vested with stautory discretionary rights, I was referred to the following cases, namely Elder V Ross & Cromarty District Licensing Board 1990 SLT 307; Bass Inns & Taverns Limited v Glasgow District Licensing Board 1995 S.C. 226; Ahmed v North Lanarkshire Council 1999 SLT 1064; Adams v South Lanarkshire Council & Anr. Lord Wheatley, 20^th. November, 2001; Calderwood v Renfrewshire Council Inner House, 3^rd. February, 2004 and Wilson v Aberdeen City Council [2008] CSIH 8 - XA186/06, dated 20^th. December, 2007. In Elder at page 311, Lord Weir made a statement as to the law generally on what might be thought of as the conflict between having a policy while being required to exercise discretion in each case, which has been referred to with approval consistently in the succeeding cases, in the following terms : -

" The law on this question has been developed in a number of English cases and I am satisfied from a study of references in several cases decided in our court that the law of Scotland is no different. The principles which are established, in my opinion, may be summarised in this way. Where a statutory body having discretionary power is required to consider numerous applications there is no objection to its announcing that it proposes to follow a certain general policy in examining such applications. Indeed, in certain circumstances it may be desirable to achieve a degree of consistency in dealing with applications of similar character. Moreover, there is nothing wrong with policies being made public so that applicants may know what to expect. However, such a declared policy may be objectionable if certain conditions are not fulfilled. A policy must be based on grounds which relate to and are not inconsistent with or destructive of the purposes of the statutory provisions under which the discretion is operated. Moreover, the policy must not be so rigidly formulated so that, if applied, the statutory body is thereby disabled from exercising the discretion entrusted to it. Finally, the individual circumstances of each application must be considered in each case whatever the policy may be. It is not permissible for a body exercising a statutory discretion to refuse to apply its mind to that application on account of an apparent conflict with policy." He also made the point, at page 313, that it would be for the petitioner to show, standing the policy, that his application merited departure from the policy.

In Bass Inns & Taverns the issue arose out of a policy operated by Glasgow District Licensing Board to allow only one amusement with prizes gaming machine in each bar within its jurisdiction. The petitioners owned premises in which there was both a lounge bar and a public bar in each of which there was such a machine, with the Board's permission. The petitioners, with approval, converted the premises into a single large bar and then sought permission for the presence of two amusements with prizes machines. The Board, applying its policy of one machine per bar, restricted permission to one. The petitioners appealed. The Inner House held that where there was an established policy, the authority had to allow an applicant a hearing and give him an opportunity of submitting to them that his application was one to which the policy should not apply and, in giving reasons for the decision, the board should demonstrate that not only had they heard and considered the applicant's arguments in support of making his application an exception to the policy but, where it was appropriate to do so, having regard to the nature of the policy, also explain the reasons which had persuaded them not to grant this particular application after consideration of it; that, in this case, there was no doubt that the board did give the appellants an opportunity of submitting that the policy should not apply to the application and that the application should be granted in full; that the history of the premises was irrelevant insofar as there were originally two bars, each having one machine, for once the premises were altered and made into one new bar, the board required to consider the premises as they now existed with only that bar and then consider whether that new, upgraded, single bar should have an additional machine, which would be an exception to their policy; and that the board had given sufficient reasons for their adherence to their policy.

In Ahmed's case, he might reasonably be described as the victim of local government reorganisation when the Districts of Motherwell, Monklands, Cumbernauld and Kilsyth and part of Strathkelvin became North Lanarkshire Council. Mr. Ahmed operated premises in Bellshill called "The Spice of Life" for which premises the previous administration had granted certain late night extensions for the service of food by granting a late hours catering licence. The new authority found itself faced with four different policies operated by the four previous administrations which had been merged to become it, and set about formulating its own policy which turned out to be more restrictive than the policy which had previously applied to "The Spice of Life." Mr. Ahmed appealed, essentially on the basis that he had done nothing to justify any alteration in the status quo and should be allowed to trade as he previously had been doing. Sheriff Lunny agreed with him. On appeal the Inner House, an extra division chaired by Lord Prosser, held that an authority was entitled to lay down a policy as a way of achieving its general aims; that even if a course of conduct inconsistent with the policy could be regarded as consistent with, or likely to achieve the aims, the authority remained entitled to require conformity with the policy in the absence of any positive or specific justification for departing from it; that where a policy had been promulgated, the requirement not to apply it rigidly, and to consider each case on its merits, did not entitle those who were within the scope of the policy to have their cases considered in isolation and as if there were no policy and that the written submissions for the applicant did not address the question whether there was any justification for treating his case as unusual, far less sufficiently exceptional to justify a departure from the policy. At page 1066 B and G in the Opinion of the Court, it is stated that in circumstances where there was a policy and the policy itself was not challenged, so that the only live issue was whether the applicant had justified being treated as an exception to the policy, that the sheriff could only interfere with a licensing authority's determination of that issue if the authority had reached a conclusion that no reasonable authority properly exercising its discretion could have reached.

In Adams' case, South Lanarkshire Council decided to change its policy in relation to extending permitted hours for public house premises. The pursuer applied by means of judicial review for a review of the authority's decision to refuse her a regular extension of permitted hours on the basis on which she had sought them. The circumstances were complicated by the Board's departure from a previous practice of using applications for occasional extensions. A further unique feature was the reference to S.47 of the Law Reform (Miscellaneous Provisions)(Scotland) Act, 1990, which provides that no application for a regular extension of permitted hours will be granted unless the applicant satisfies the licensing authority that there is a need for such an extension and that the benefit which it would convey would outweigh any detriment to the locality. However, of relevance to the present case, is the statement of the law by Lord Wheatley at paragraph 8 of his judgment when he said, " It was accepted that any licensing board can devise a policy, reconsider it and then change their mind. But any policy must have a reasonable basis, must not frustrate the exercise of the statutory power conferred upon the board, and must be applied so that it does not fetter the discretion conferred by statute." He expanded upon this at paragraph 20, saying, " Nor can it be suggested that the board acted in such a way as to fetter its own discretion. I think it is difficult to maintain that argument in any circumstances where the board has given sufficient reasons for their decisions in the context of the application of their policy. The board are fully entitled to consider their policy while treating each case on its own merits. The fettering of a discretion can only properly be described as having occurred when the board have allowed their policy to exclude any other relevant and legitimate considerations in coming to their decision in any particular case, or not considered any particular case on its merits. What the board has done here was to consider the relevant issues on the basis of the material placed before it and then exercised a reasoned judgment on that material in applying their policy."

In Calderwood's case, a cynic might be forgiven for concluding that so supportive has the law become in relation to policy decisions, that provided the policy is reasonable and each application is considered on its merits, that decision will be upheld, no matter how daft it might appear to be to ordinary people. This was a case relating to a street trader's licence for a flower stall which had operated for years, if not decades, at the Cenotaph in Paisley, in the vicinity of the Abbey. Renfrewshire Council decided to designated an area in respect of which no street traders' licences would be issued. It is not easy to discover in the judgment of the Inner House what the justification for this decision was. In any event, Mrs. Calderwood sought exemption from the policy on the basis that she had, historically, operated from this particular site, not only without complaint, but with a stall which was regarded as being so attractive as to feature in the same local authority's tourist brochures, in several different languages, with a view, one assumes, of attracting tourists to the area. It is, in my respectful opinion, unsurprising that the sheriff concluded that the authority had applied their policy with excessive rigidity and allowed her appeal. The Inner House, however, overturned the sheriff. At para. 17, giving the judgment of the court, Lord Osborne said that the statement of reasons met the test set forth in the Wordie Property case, "having regard to the fact that, in their concluding paragraph, the Board make reference to the submissions made on behalf of the respondent. What the Board appears to us to have said was that, even in the light of all those detailed submissions, they have not been persuaded that an exception should be made to the existing policy in favour of the respondent. It is true that, in the concluding paragraph the Board do not expressly mention again what the submissions made on the respondent's behalf were. However, we consider that to have done so would have been unnecessary repetition. What is quite clear is that they had taken these submissions into account. In these circumstances, in our view, the criticisms directed against the adequacy of the Board's reasons fail." Further, at Para. 20, he made reference to two English authorities, In re Finlay [1985] 1 A.C. 318 and British Oxygen Company Limited v Board of Trade [1971] AC 610. In the former, Lord Scarman, at page 335, said, " The legitimacy of adopting a policy in the exercise of an administrative discretion has been recognised by the court. In a tribunal case Banks L.J. had this to say, Rex v Port of London Authority ex parte Kynoch Limited [1919] 1 K.B. 176 at 184, 'In the present case there is another matter to be borne in mind. There are on the one hand cases where a tribunal in the honest exercise of its discretion has adopted a policy, and, without refusing to hear an applicant, intimates to him what its policy is, and that after hearing him it will in accordance with its policy decide against him, unless there is something exceptional in his case. I think counsel for the applicants would admit that, if the policy has been adopted for reasons which the tribunal may legitimately entertain, no objection could be taken to such a course. On the other hand, there are cases where a tribunal has passed a rule, or come to a determination, not to hear any application of a particular character by whomsoever made. There is a wide distinction to be drawn between these two classes.' In British Oxygen Company Limited v Board of Trade Lord Reid saw 'nothing wrong with that' and added at page 625: 'What the authority must not do is refuse to listen at all, but a ministry or large authority may have had to deal already with a multitude of similar applications and then they will almost certainly have evolved a policy so precise that it could well be called a rule. There can be no objection to that, provided the authority is always willing to listen to anyone with something new to say.'" Reverting to the present case, Lord Osborne stated, " It must be emphasised in connection with this part of the case that no argument was addressed to us to the effect that the policy of the Board was in itself objectionable for any reason. In particular, it was not argued that it was based on grounds which were inconsistent with or destructive of the purposes of the statutory provisions under which the discretion was operated. Furthermore it was not said that the policy had been so rigidly formulated that, if applied, the statutory body would thereby be disabled from exercising the discretion entrusted to it. Moreover, it was not and could not have been said in this case that the Board simply did not listen to the applicant and did not consider whether her case should be regarded as an exception to the application of the policy. It is quite clear from the Board's Statement of Reasons that they did consider the individual position of the applicant, but in the end concluded that no special case had been made out as to why the existing policy should not apply to the respondent's application.'

Finally, in Wilson v Aberdeen City Council, the Inner House dealt with an appeal from the sheriff in which the decision of the licensing authority for taxis in Aberdeen refused to allow a particular type of vehicle to be substituted for another type of vehicle. It was observed that the sheriff had correctly identified the dispute as being truly focused on the validity or otherwise of the respondents' policy in relation to the initial grant of taxi licences having regard to the need for wheelchair access. That policy was to require all persons applying for a licence after 19 August 1994 to provide a vehicle having such access. The appellant was a post-1994 applicant and did provide such a vehicle but now sought to replace that vehicle with one which was not wheelchair accessible. There is no explanation why he sought to make that change though there is a suggestion that it may have been argued by reference to S.10(2) of the 1982 Act that there was no statutory requirement for a vehicle to be approved as a taxi that it be wheelchair accessible. Of relevance to the present case is paragraph [4] of the judgment where it is said that the court cannot be "other than wholly sympathetic to a policy which in the end, we accept, envisages that the whole taxi fleet in the Aberdeen area will be wheelchair accessible as, indeed, has been achieved in other local authority areas within Scotland." I pause merely to observe that that has the appearance of a rigid policy which, of course, would be unlawful, though I entirely accept that a policy designed to increase the number of wheelchair accessible taxis is not.

Decision:

Having had the benefit of consideration of the foregoing authorities, I now turn to the issues before me for resolution. In the present case, it was not argued that the policy adopted by the defenders of trying to ensure that as great a percentage as possible of the fleet of vehicles operating as taxis in Dundee are wheelchair accessible was unreasonable. Nor was it argued that the pursuer's application had not been considered individually nor that aspects of his application had not been considered. No criticism is made of the contents of the statement of reasons as issued in the letter of 11^th. September, 2007 so far as concerns their adequacy. What is in effect submitted is that no reasonable authority in the proper exercise of the statutory discretion which it is obliged to exercise could have reached the conclusion which the defenders reached in requiring the pursuer as a condition of his taxi licence to place on service as that taxi a vehicle with European Whole Volume Type Approval. It was also argued that the defenders had determined the application having regard to a materially incorrect fact, namely that their approach would add to the number of wheelchair accessible vehicles operating in Dundee. I do not consider that the defenders were labouring under any misapprehension as to the facts and, in particular, were aware that the pursuer himself would be unable to convey wheelchair bound passengers even if he had a wheelchair accessible vehicle.

The policy is designed to have regard to the provisions of the Disability

Discrimination Act, 1995. A swift perusal of the Act does not reveal any

particular provisions relating to discrimination by licensing authorities, but it

is instructive to consider the provisions in Part II of the Act relating to

employers and what they have to do to modify premises and working practices

to accommodate disabled people. A person is disabled if he has a physical or

mental impairment which has a substantial and long term adverse effect on his

ability to carry out normal day to day activities. As earlier narrated, there are

also specific provisions relating to the operation of taxis, comprising Sections

32 - 39, none of which are currently in force. Whether that gives rise to an

argument that the defenders' currently policy is premature and potentially

destructive to the current statutory provisions relating to taxis in the 1982 Act

which do not require taxis to be wheelchair accessible, given the increased

costs of acquiring such vehicles, is for another day. What is relevant is that the

Disability Discrimination Act, which was passed on 8^th. November, 1995,

proposes, in relation to Scotland, by s. 39 a system whereby the "Secretary of

State" may make by regulations requirements as to the carriage of wheelchair

bound passengers, including the prescription of types of vehicle for this

purpose, and "the circumstances in which any exemption from such provision

may be granted in respect of any taxi or taxi driver." It is instructive that the

regulations are intended to provide exemptions for both taxi and taxi driver. In

S. 36 of the 1995 Act, which applies only to England and Wales, though this

section is also not yet in force, which makes provisions in relation to the

carrying of wheelchair bound persons in taxis, subsection (7) provides "If a

licensing authority is satisfied that it is appropriate to exempt a person from

the duties imposed by this section (a) on medical grounds or (b) on the ground

that his physical condition makes it impossible or unreasonably difficult for

him to comply with the duties imposed by this section, it shall issue him with

a certificate of exemption." It is not obvious to me that in the application of

their policy based on the terms of the Act not yet in force to the pursuer in this

case, the defenders gave any thought as to whether he would fall within the

terms of the intended statutory protection for taxi drivers who happen to be

disabled. In any event, it is not evident that they gave any thought to the

nonsensicality of requiring someone with a disability which would preclude

him from being able to assist wheelchair bound passengers into and out of a

wheelchair accessible taxi to have such a wheelchair accessible taxi

notwithstanding his physical inability to provide such assistance.

It is something of a supreme irony that in their efforts to secure the best

service for wheelchair bound passengers having regard to the provisions of

the Disability Discrimination Act, 1995, the defenders in considering the pursuer's application, have disregarded the need to apply the same considerations to him. Had they treated an employee in this manner they would have run the risk of falling foul of the statutory protection for disabled employees. In any event, the bottom line is that no reasonable licensing authority properly considering the special circumstances of an application such as the pursuers' could have come to the conclusion that his was not a special case in which a departure from their policy would be appropriate. They accepted that it was his intention to operate the taxi himself and they have given him licences both as operator and driver to do so. It is no justification against that acceptance by them of the factual situation to insist on compliance with their policy just in case this might be an attempt to get round it with the employment in due course of some able bodied driver. If they wanted to apply a condition to this licence they could have attached a condition that the vehicle would only be used by the pursuer, a condition with which he presumably would have no quarrel. They were aware of his history as a holder of licences as operator and driver of a private hire car licence and would presumably know whether anyone else had been employed to drive that vehicle and thus have a background against which to test his veracity. Moreover, they were aware and accepted the information provided about his physical disabilities and how that restricted him from operating any wheelchair accessible vehicle. If this pursuer's circumstances do not justify a departure from the defenders' policy then it is hard to see what circumstances would justify such a departure and if no circumstances justify a departure then the defenders are operating a rigid policy with no exercise of discretion which is unlawful. I accordingly consider that the defenders have failed to exercise their discretion properly in relation to the pursuer's application and have reached a conclusion that no licensing authority properly addressing itself to the issues could have reached. Accordingly, I sustain the pursuer's appeal.

Up to this point I have had little regard to the earlier decision in relation to the

pursuer's earlier application by my colleague, Sheriff T.G. Hughes. It is however relevant that I should do so having regard to what happens next, the options being set out in Paragraph 18(9) of Schedule One to the 1982 Act. Sheriff Hughes, for reasons similar to my own though more concisely expressed, came to the same conclusion on the merits of the appeal as I have. I have to say that it is difficult on a consideration of the letter of 11^th. September, 2007 emanating from the defenders, in which they say they took account of this decision, to ascertain what account was taken of Sheriff Hughes' decision. Accordingly, I do not consider that these are circumstances in which it would be appropriate to remit the case to the licensing authority especially standing the conclusion I have reached that they have themselves reached a conclusion which no reasonable licensing authority could have reached. I shall accordingly modify the decision of the defenders by excising the condition that the pursuer requires to put on service a vehicle with European Whole Volume Type Approval. For the avoidance of doubt, there is to be no condition on his taxi licence requiring him to place on service any wheelchair accessible vehicle. Any vehicle otherwise approved by them currently for the purpose of S.10(2) of the 1982 Act will suffice.

Parties were agreed that expenses would follow success and I shall

accordingly find the defenders liable to the pursuer in the taxed expenses of

the cause.

SHERIFFDOM OF TAYSIDE CENTRAL AND FIFE AT DUNDEE

JUDGMENT RECORD AND CATEGORISATION SHEET

CASE NAME: JOHN COUTIE v DUNDEE CITY COUNCIL

CASE NUMBER : B876/06

AUTHOR : SHERIFF RICHARD A DAVIDSON

DATE SIGNED BY AUTHOR : 21^ST. APRIL, 2008

DATE RECEIVED BY MRS CRANSTON :

DATE PUBLISHED ON WEBSITE:

SHERIFF'S EDITING COMMENTS:

Was editing necessary ? No

CATEGORISATION OF JUDGMENT:

The judgment should be recorded under the following categories:

Licensing.

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