EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lady Paton Lord Carloway Lord Hardie	[2009] CSIH 88 XA87/08 OPINION OF THE COURT delivered by LORD HARDIE in the Appeal from the Sheriff Court at Dundee by JOHN ROBERT COUTIE Pursuer and Respondent; against DUNDEE CITY COUNCIL Defenders and Appellants: _______

Pursuer & Respondent: C. A. Thomson; Thorntons Law LLP

Defenders and Appellants: S.P.L. Wolffe Q.C.; Gillespie Macandrew LLP

2^nd December 2009

Introduction

[1] The appellants are the licensing authority constituted under the Civic Government (Scotland) Act 1982 ("the 1982 Act") for the city of Dundee and have responsibility for the grant or refusal of taxi licences. The respondent is the holder of a private hire car licence issued by the appellants. In 2006 he applied to the appellants for the grant of a taxi licence. The appellants operate a policy whereby the granting of new taxi licences will be conditional upon any vehicle being placed on service as a taxi, or any subsequent replacement vehicle, having European Whole Volume Type Approval which are accessible to disabled persons ("the accessibility condition"). In his application to the appellants the respondent sought a variation of the said policy and, in particular, sought the grant of a taxi licence subject to the standard conditions varied to enable the respondent to place on service as a taxi a vehicle without European Whole Volume Type Approval. The reason for the variation sought was the exceptional circumstances of the respondent, particularly his medical condition as evidenced by a letter from his general practitioner, Dr. R., dated 26 May 2006. At their meeting on 7 September 2006 the appellants granted the respondent's application subject to their standard conditions, including the accessibility condition.

[2] The respondent appealed to the sheriff at Dundee against the inclusion of the accessibility condition in the licence granted to him and on 24 April 2007 Sheriff T. G. Hughes sustained the respondent's appeal and remitted the application to the appellants for reconsideration of their decision. On 16 August 2007, at a meeting of the Licensing Committee, the appellants reconsidered the respondent's application. The committee were provided with inter alia a further letter dated 17 January 2007 from the respondent's general practitioner, Dr R., giving more detail about the respondent's long history of chronic back problems. The committee granted the respondent a taxi licence subject to 34 conditions including the accessibility condition which was in the following terms:

"32. Any vehicle placed on service as a taxi, or any subsequent replacement vehicle, must, as a minimum, have European Whole Vehicle Type Approval and a certificate to that effect which identifies the vehicle by its Vehicle Identification Number (VIN) from the Vehicle Certification Agency must be provided to the Cabs Enforcement Officer prior to the vehicle being submitted for test."

The pursuer and respondent again appealed to the sheriff at Dundee and sought a variation of the appellants' decision dated 16 August 2007 to enable the respondent to place on service as a taxi a vehicle which did not have European Whole Volume Type Approval. The basis of the appeal to the sheriff was that the defenders and appellants had based their decision on an incorrect material fact and, separately, had exercised their discretion in an unreasonable manner. On 21 April 2008 Sheriff R. A. Davidson repelled the first plea in law for the pursuer (the alleged incorrect material fact) but sustained the pursuer's second plea in law and allowed the appeal. The sheriff's interlocutor is in the following terms:

"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."

The appellants' appeal is against that interlocutor.

Submissions on behalf of the appellants

[3] Counsel for the appellants submitted that the appeal before the sheriff was in very narrow compass. The respondent did not challenge the vires of the accessibility condition or the underlying policy. It had not been suggested before the sheriff that the appellants had fettered their discretion in the application of the policy or the accessibility condition nor was there any challenge on the basis that the appellants took into account irrelevant factors or failed to take into account material ones. There was no challenge to the articulation of the statement of reasons. It was common ground that the accessibility condition was intra vires, as was the underlying policy; that there had been no rigid application of the policy underlying the accessibility condition; and that there had been no fetter of the exercise of the appellants' discretion in that regard. The substance of the successful argument before the sheriff focussed on a submission that the appellants had exercised their discretion in an unreasonable manner in refusing to exempt the respondent from the accessibility condition. Counsel submitted that the decision reached by the appellants was one which was within the range of permissible decisions open to them. They had considered the medical evidence relating to the respondent's back condition, as well as his stated intention not to employ a driver but to drive the taxi personally. Against that, the appellants were entitled to take into account the fact that another person could drive the taxi and the terms of their policy, as well as the need "to ensure that as great a percentage as possible of the fleet...are accessible" to disabled passengers. The decision of the sheriff was flawed in a number of respects. First, his approach to the issue before him was flawed by his own doubts as to the vires of the accessibility condition despite the fact that there had been no challenge on that ground. Second, the sheriff had misdirected himself as to the genesis of the policy in the context of the interpretation of the Disability Discrimination Act 1995 (as amended) ("the 1995 Act"). Third, the sheriff had substituted his own view of the matters to be assessed by the appellants.

[4] A second ground of appeal was advanced to the effect that the sheriff had erred in law in granting an unconditional licence to the respondent. Neither party had sought that outcome. The narrow issue before the sheriff had been whether the respondent's appeal should be allowed, in which case the accessibility condition would be deleted from the conditions attached to his licence, leaving the other 33 conditions, which were unchallenged and therefore accepted to be appropriate conditions, attaching to the respondent's licence.

Submissions on behalf of the respondent

[5] Counsel for the respondent accepted that the sheriff had erred in ordaining the appellants to grant an unconditional licence to the respondent and invited the court to allow the appeal to the extent of deleting the words "and otherwise unconditionally" from the sheriff's interlocutor. However, he submitted that the interlocutor should be adhered to in all other respects. It was accepted that the sheriff had reached the correct decision when he concluded that the respondent's challenge to the appellants' decision based upon an incorrect material fact was without merit. Moreover, the respondent did not challenge the reasonableness of the appellants' policy in this case or the appropriateness and reasonableness of the accessibility condition. There was no challenge to the adequacy of the reasons given to the respondent by the appellants for their decision and it was accepted that the respondent had to demonstrate that his circumstances merited a departure from the policy. There was no dispute that the appellants had considered the respondent's circumstances when reaching their decision. The 1995 Act was not relevant to the determination of the respondent's application to the appellants or to his appeal before the sheriff or to the present appeal. It was submitted that in the circumstances of this case the appellants had failed to exercise their discretion in a reasonable manner as to whether to insist upon the accessibility condition. In particular, they had accepted that the respondent was able to drive a vehicle but would be unable, by reason of his medical condition, to provide assistance to persons requiring disabled access to his taxi. Furthermore, in view of the respondent's statement that he did not intend to employ a driver and wished to drive the taxi personally, it had been unreasonable for the appellants to take into account the possibility that he might use another driver.

Decision

[6] Before the sheriff, parties were agreed about the material facts and their agreement was incorporated into a Joint Minute of Admissions consisting of 27 paragraphs. For the purposes of the present appeal the relevant paragraphs of the joint minute are as follows:

"7.  That with effect from 1 April 2005 the Defenders operate a policy whereby the granting of a new taxi licence will be conditional upon any vehicle being placed on service as a taxi, or any subsequent replacement vehicle, having as a minimum European Whole Volume Type Approval, being a vehicle accessible to disabled persons.

8.  That from November 2003, the Defenders' policy had allowed new licence-holders to place on service vehicles having either European Whole Volume Type Approval or Low Volume Type Approval, both of which types of vehicle are accessible to disabled persons.

9.  That in terms of the Defenders' policy, the holders of any licences granted prior to November 2003 are not obliged to place an accessible vehicle on service and that those granted between November 2003 and 1 April 2005 may continue to operate either a Whole Volume or Low Volume Type vehicle.

10.  That Whole Volume Type vehicles are the highest specification for accessible vehicles in terms of EC Directives and tend to cost in the region of £20-30,000, the most common type being the purpose built "London" taxi.

11.  That Low Volume Type vehicles are of a lesser specification and are less expensive than Whole Volume Type vehicles, but more expensive than saloon cars.

...

23.  That as at 27 December 2007, the number of taxis operating within the jurisdiction of the Defenders is 580 of which the number of vehicles with European Whole Volume Type Approval are 78 and the number with Low Volume Type Approval are 120.

24.  That the pursuer is physically disabled and is unable to support or assist other disabled or infirm persons into or out of a vehicle.

25.  That the pursuer's medical conditions are summarised in a letter from the said Dr R. dated 17 January 2007...which was before the Defenders at their meeting on 16 August 2007.

26.  That the pursuer does not intend to employ a driver and wishes to drive the taxi personally.

27.  That condition 18 of the Pursuer's Taxi Driver's licence is in the following terms, '18. 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.'"

[7] The letter from Dr R. dated 26 May 2006 was in general terms and confirmed that the respondent had "on-going medical problems the nature of which will compromise his ability to support a customer requiring wheelchair access." The subsequent letter from him dated 17 January 2007 noted that the respondent had a long history of chronic back problems and in 1995 he had been diagnosed with sciatica, secondary to a prolapsed disc. He had a discectomy which had been of limited benefit and he continued to experience chronic back pain on a daily basis. He took painkilling medication. The main problems experienced by the respondent were associated with his ability to bend forward, sit for prolonged periods of time in a single position and, most importantly, lift heavy items. Despite these problems, there was no concern about the respondent's ability to drive and control appropriately a taxi vehicle.

[8] It was a matter of agreement that the relevance of the provisions of the 1995 Act in this case was confined to the rationale behind the policy of the appellants which was not, in any event, the subject of any challenge. The observations by the sheriff in paragraphs 48 and 49 of his Note about the 1995 Act are irrelevant to the issue of whether the appellants exercised their discretion unreasonably in this case. Having said that, we have some sympathy for the sheriff who may have been misled into thinking that the 1995 Act was relevant, in view of the fact that it was introduced into submissions by the solicitor for the appellants. From the sheriff's narrative of the submissions on behalf of the appellants it appears that their solicitor acknowledged that the parts of the 1995 Act to which he referred were not in force and some of them did not apply to Scotland (para 32). In these circumstances and in light of the concession by both counsel before us that the 1995 Act was of limited relevance in this case, it is difficult to understand why the appellants' solicitor embarked upon those submissions before the sheriff. Such an exercise was pointless but had the effect of inducing the sheriff to consider the terms of the statutory provisions to which he was referred. When he gave consideration to the 1995 Act he observed:

"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 of Part II of the Act relating to employers and what they have to do to modify premises and working practices to accommodate disabled people." (Paragraph 48)

He also observed:

"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." (Paragraph 49)

These observations are of no moment. The respondent was not an employee of the appellants and the analogy has no relevance to the duties owed by a public authority to disabled persons. In any event neither party submitted before the sheriff that the appellants owed any duty to the respondent in terms of the 1995 Act or that in their application of the accessibility condition the appellants were acting in a manner inimical to the Act. Furthermore, condition 18 of the Taxi Driver's Licence Conditions (a licensing regime regulating drivers as distinct from vehicles) referred to in paragraph [6] above means that the respondent would not be placed in an intolerable situation.

[9] The sole question for determination by the sheriff was whether, in the whole circumstances, the appellants had exercised their discretion in an unreasonable manner. In other words the respondent required to satisfy the sheriff that no reasonable licensing authority, properly exercising its discretion in the whole circumstances of this case, could have reached the conclusion that was reached by the appellants. As counsel for the respondent conceded, in reaching their decision the appellants took into account all relevant circumstances relating to the respondent as well as the desirability of increasing the number of taxis within their area which were accessible to wheelchair users. While the disability of the respondent would preclude him from providing assistance to wheelchair users wishing to travel in his taxi when he was driving, it seems to us important to draw a distinction between a taxi driver's licence and a taxi licence. The respondent's taxi driver's licence included condition 18, quoted above, requiring him to provide assistance to infirm, elderly or disabled passengers, including assistance with wheelchairs and access into and out of the vehicle, but that obligation is circumscribed by his ability to provide such assistance. As is apparent, a taxi driver's licence is personal to the holder of that licence. In contrast a taxi licence relates to a vehicle. The terms of clause 26 of the Joint Minute confirm that the respondent "does not intend to employ a driver and wishes to drive the taxi personally." While that may well be his present intention, his circumstances may alter in the future. In any event his stated intention would not preclude him from leasing his taxi for use by others during the hours when he was not using it himself. Moreover we question the sheriff's suggestion that the appellants could impose a condition in a taxi licence restricting the use of the vehicle to the holder of the licence and prohibiting its use by any other person. For obvious commercial reasons taxis are driven by more than one person to enable them to be used for most of the day and night. Such a practice is reflected in and regulated by the condition that the holder of a taxi licence must keep a list of the names and addresses of all taxi drivers permitted by him to use his taxi (condition 7). An attempt by a licensing authority to restrict such a practice by purporting to confine the use of the taxi to a single named driver may well be ultra vires. We do not consider that it was unreasonable for the appellants to envisage that, notwithstanding the stated intention of the respondent to drive the vehicle himself, it was possible, if not probable, that the vehicle would be driven by others in addition to the respondent. As the reasonableness of the policy and its objectives were not challenged, it cannot be said that, in the circumstances of this case, the appellants reached a view which no reasonable licensing authority could have reached.

[10] In view of our decision above it is unnecessary for us to determine the second ground of appeal. Suffice it to say that, as was conceded before us, there was no basis for the sheriff ordaining the appellants to grant an unconditional licence to the respondent. The respondent did not seek such an order. In any event an unconditional taxi licence would preclude any regulation of the use of such a taxi, including requirements for the testing of the vehicle to ensure that it was safe for public use. That would clearly be unacceptable.

[11] In these circumstances we shall allow the appeal and in doing so shall recall the interlocutor of the sheriff dated 21 April 2008, repel the first and second pleas in law for the pursuer and respondent and sustain the first and second pleas in law for the defenders and appellants. Thus the committee's decision given at the meeting on 16 August 2007 stands. We reserve any question of expenses to enable parties to address us on that matter.