Equality Act

February 25th, 2019 by James Goudie KC

McNutt v Transport for London [2019] EWHC 365 (Admin) was an appeal by way of case stated against a decision of Hendon Magistrates Court to find Mr McNutt, guilty of the offence contrary to Section 165(7) of the Equality Act 2010 (“the EA 2010”). It raised an important point of statutory construction in relation to the duty, pursuant to Section 165(1)(a) and Section 165(4)(b) of the EA 2010 on the driver of a taxi which has been hired by or for a disabled person in a wheelchair “not to make any additional charge for doing so”. By Section 165(7), it is a criminal offence to make such an additional charge.

A taxi is defined by Section 173(1)(a) to be a vehicle which is licensed under Section 37 of the Town Police Clauses Act 1847 or Section 6 of the Metropolitan Public Carriage Act 1869 (“the 1869 Act”). In simple terms, it means a vehicle plying for hire.It was not in dispute between the parties that demanding payment from a wheelchair user for the time it takes to board the taxi would amount to the making of an additional charge for the purposes of Section 165(4)(b) and Section 165(7) of the EA 2010. This is consistent with what is said in Button on Taxis: Licensing Law and Practice (4th Edn). This is said in relation to hackney carriages outside London, but the Judge said that the same is true within London.

The main issue on the appeal was whether a “charge” was made by Mr McNutt by the act of him switching on his taximeter before the wheelchair user had boarded, even though she never entered his taxi, no money was demanded (either expressly or by implication) and she ended up travelling in a different taxi.

The Judge said:-

“25.    The researches of counsel have not uncovered any prior authority on the proper construction of s 165(4)(b). There is some brief statutory guidance … The issue before me is therefore a novel one. It is … a question of statutory construction.”

“29.    The starting point is to note the precise language used in s 165(4)(b). The driver’s duty is not ‘to make any additional charge’ as a result of being hired by or on behalf of a disabled person. In this phrase the word ‘charge’ is being used as a noun and not a verb. The online Oxford English Dictionary definition of ‘charge’ when used as a noun include ‘a price asked for goods or services’ and also ‘a financial liability or commitment’

(see https://en.oxforddictionaries.com/definition/charge).”

“31.    In my judgment it is the second meaning which is to be ascribed to the word ‘charge’ as used in s 165(4)(b), and a taxi diver makes a charge when he switches his taximeter on, and if he does this for a disabled passenger before the passenger and her wheelchair have been loaded into the taxi, there will be an additional charge and thus an offence under s 165(7) even if, for whatever reason, the driver never actually demands the fare.”

“34.    … it cannot have been Parliament’s intention that the word ‘charge’ should be construed so that a taxi driver only becomes criminally liable for charging a disabled passenger more when he actually demands the additional fare at the conclusion of the journey. …

  1. In my judgment there can be no doubt that no later than the time a taximeter is switched on at the point of hire, an actual financial liability or commitment is imposed on the passenger to pay the amount shown on the meter when the hiring is terminated, and it is therefore at that point that the charge is made for the purposes of s 165(4)(b). …”

“41.    … in my judgment it is clear that a passenger is legally obliged to pay the metered fare, whatever that fare might be. That legal obligation has at least two strands to it. Firstly, it is an implied term of the contract struck between the taxidriver and the passenger at the point of hire. The taxi driver agrees to the take the passenger to their destination and the passenger agrees impliedly to pay the fare on the meter. It is always open to the taxidriver to vary the contract by accepting a lesser fare …, but absent such a variation the passenger is contractually bound to pay the metered fare. Second, a passenger who fails to pay the fare due according to the meter would likely commit one or more criminal offences. …

  1. For these reasons, in my judgment the words ‘make an additional charge’ in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.”

“49.    I have focussed in this judgment on London taxis fitted with taximeters because this appeal concerns such a vehicle. However, I hope it will be of assistance if I say something about private hire vehicles (PHVs) in London, and taxis and PHVs outside London, all of which are also subject to s 165.”

“52.    I turn to the position outside London. There … PHVs are subject to a different statutory regime. The principal legislation is the Town Police Clauses Act 1847 (the 1847 Act) and the Local Government (Miscellaneous Provisions) Act 1976 (the 1976 Act). Neither of these requires hackney carriages to have taximeters, but most local authorities (who are the taxi licensing authorities for their area) do make it a requirement, either by means of byelaws made under s 68 of the 1847 Act, or as a condition attached to a hackney carriage proprietor’s licence issued under s 47(1)(2) of the 1976 Act. In both cases the meter must be calibrated and sealed. …

  1. I see no basis for reaching a different conclusion in relation to hackney carriages outside London as compared with those in London. In both places the taximeter calculates the fare and there is an implied term in the contract between the driver and the passenger (or an express term, should there be written conditions of carriage – there are no such conditions for London hackney carriages) that the passenger will pay the fare shown on the meter. A financial liability or commitment is therefore created when the driver switches on the meter, precisely as it is in relation to a London hackney carriage and it is no later than this point that a ‘a charge is made’ for the purposes of s 165(4). This liability or commitment is reinforced by s 66 of the 1847 Act, which makes it an offence to refuse to pay the fare due. I reach the same conclusion as before where the driver gives an inflated fee estimate. That in my judgment is a contingent financial liability or commitment falling within s 165(4)(b).
  2. In relation to PHVs outside London, unlike in London, these may lawfully be fitted with a taximeter. Section 71 of the 1976 Act provides that nothing in the Act shall require any PHV to be equipped with any form of taximeter but if it is then the taximeter must have been tested and approved. For the reasons already given, the use of a taximeter in a PHV creates a contractual obligation to pay the metered fare, and hence switching on the meter amounts to ‘making a charge’ because it creates a financial liability or commitment. This is reinforced by the criminal law: … For PHVs outside London without a taximeter, the position is the same as for PHVs within London, and for the same reasons I conclude that providing a fare estimate or indication in advance of the journey is sufficient to amount to the making of a charge because it creates a contingent financial liability or commitment and that in my view is sufficient to engage s 165(4)(b).”

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