Repairing Broken Boundaries

Since my post on Taxi Leaks, and also printed in PHTM named Uber Boundaries, Bent or Broken? (Link found here) I have now evolved this issue to repair the boundaries that have been bent or broken, and the repair comes with Case Law to support it, so why are we doing, once again, what the Licensing Authorities are paid to do from our fees? 

 

Is it because we actually care and are the ones being hurt on a daily basis from it? 

... Probably.

 

Is it because the Licensing Authorities have the same apathy that some of our colleagues have? …Possibly.

 

Let’s look at the scenario that effects many areas within the UK, and that’s vehicles and drivers licensed in another area ranking up on the roads awaiting a job to come to them from the public through the platform that the driver is working on, that would be an accurate occurrence of events, wouldn’t you agree?

 

Problem is, this is actually illegal, and both the driver and the Operator are equally guilty of the offence of Plying for Hire. Yes, I know, Plying For Hire does not have a statutory definition, however the description written in the article on Taxi Leaks by Alan Flemming, which I think is possibly the most definitive explanation and reference for this offence (article found here) has the most accurate definition and one point I wish to extract from that well of information is from a case way back in 1946 from the case of Gilbert v McKay where the presiding Lord Chief Justice Lord Goddard(ironically the first ever Lord Chief Justice to hold a Law degree, go figure…) stated.

Lord Chief Justice stated;

 

“In my opinion even if the cars had been standing in a private yard and could not be seen by the public, there could still have been a plying for hire if they had been appropriated for immediate hiring”.  

 

The important thing here is the reference to a private yard and not on view to the public at the time of hiring. Even more important is his reference to an immediate hiring.

 

 

So, a vehicle parked on private land and out of sight, let alone on a main road near popular public places, is in fact sat waiting for the immediate hire as would a Hackney.

Now let’s remind ourselves of what these vehicles that commute from their own licensing area do, they sit at the side of the road waiting for a member of the public to make an immediate booking through an App and they set off to pick up that person, a member of the public who, as far as they are concerned opened an App in a City and expect a Licensed Vehicle and Driver with that Cities Authorities to come and fulfil their request.

 

 

 

Probably the same as they would not expect a curry ordered on an App to be supplied by a curry house some 200 mile away, they expect it to be local, don’t they? … Of course they do…

 

 

 

But I hear drivers who work in the area that they are licensed already screaming out “WTF we have to park up like this, don’t tell me I have to hide in a side street” actually, no you don’t, so calm down and carry on reading.

 

A driver who is working outside the area that he is licensed must as Mr Justice Hickinbottom stated in the case between Blueline Taxis v Newcastle;

 

The operation is geographically fixed in the operator's licensing area: that area must be where the operator's premises are located, bookings made and from which vehicles are. It is an offence for operators to operate outside that licensing area; nor can they subcontract work to operators outside that area. It is therefore clear that Parliament has determined that the licensing regime for private hire vehicles is inherently local in nature – presumably on the basis that "devolved decision making in relation to the application of the legislation is beneficial in that local authorities are in the best position to determine what is needed most in their area and what the main problems and issues are" and it is a "central principle of this legislation" that "the authorities responsible for granting licences should have the ability to exercise full control over the operation of private hire vehicles within their area.

Case references removed for ease of reading, full report can be read here

 

So as you can see, Mr Justice Hickinbottom acknowledged that a local council knows best in its area, and therefore can see that locally licensed Private Hire Vehicles will park in certain areas, but should these areas be outside popular places? Of course not or they are equally sat Plying for Hire, however, the locally licensed driver is well within his right to sit in the area that he is licensed to work to provide a service for a member of the public who wishes a Private Hire as soon as possible. Sorry Hackney drivers, but this is a fact of the Private Hire trade also, it is not your given right to be the only service that works on a complete ad hoc basis.

 

 

Now I hear the drivers who are working out of area screaming “If I am not parked in a popular place waiting for a job, then what’s the difference”… oh, that one is both simple and very clear and in the same court case of Blueline v Newcastle where Mr Justice Hickinbottom also stated that;

 

 

However, although the operator must be based and "operate" exclusively in the relevant licensing authority's area, that does not prevent a pre-booked journey, in whole or part, being made outside that authority's area. So long as the relevant operator's licence, vehicle licence and driver's licence are all issued by the same local authority, then it is irrelevant that any particular journey undertaken by a private hire vehicle neither begins, nor ends, nor passes through the area for which that authority is responsible although it may be that, if an operation engages in journeys none or few of which pass through the geographical area of the licensing authority, then a licence may not be forthcoming from that authority.

Again, edited from case references for ease of reading, same link as above.

 

 

So, if you missed it, it’s in two parts, the first says “that does not prevent a pre-booked journey” well sorry guys, but when you are sat in another area waiting for someone to open the App and request a vehicle, then that’s not a pre booked job, its ad hoc.

 

And the other bit is where he says “if an operation engages in journeys none or few of which pass through the geographical area of the licensing authority, then a licence may not be forthcoming from that authority” and what that means is that you and your vehicle may be licensed by the same authority, but the person or company who is licensed by that very authority is not allowed to continually take bookings in another authorities jurisdiction…

 

Therefore, to summarise, any Private Hire Vehicle that is using the ‘Triple Licensing Rule’ to predominately work outside its Licensing Area is in fact working illegally, it’s as simple as that.

 

Now, here is the BrucieBonus…

 

 

 

Any Operator who is encouraging a driver to break the law in regards to Plying for hire is equally guilty of the same offence, under Section 72 of the LGMPA 1976 which is;

 

Offences due to fault of other person etc.

(1) Where an offence by any person under this Part of this Act is due to the act or default of another person, then, whether proceedings are taken against the first-mentioned person or not, that other person may be charged with and convicted of that offence, and shall be liable on conviction to the same punishment as might have been imposed on the first-mentioned person if he had been convicted of the offence.

So basically, even if the driver is charged or convicted of the offence of Plying for Hire, the company that he represents is guilty regardless by allowing him to sit in an area that he is not licensed in. And before these companies cry wolf and state that they are not in control of what the driver does, sorry, but you are. You can prevent the driver from signing onto the platform and be available to accept bookings in an area that he is not licensed in, as you do in London and Birmingham for drivers who are not licensed there, yes Uber if you have not realised yet, I am talking about you and your platform. Or at the worst case scenario put the driver not available when vacant and not in the area he is licensed in, let’s be honest here, we would not want a driver who has dropped out of his area being punished simply because he stopped for a rest break or food, would we?

 

You see, there is always an answer to every problem, it’s just whether you want to look for the answer and then work at the problem, or do you want to put your head in the sand and pretend that the problem will go away…

 

With thanks to Mark Jennings from Southend with assisting me in this. Full respect to Mark and his commitment to this nationwide issue.

 

 

 

 

 

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CAMPAIGN TO SAVE TAXIS & PRIVATE HIRE FROM UNREGULATED UBER WITH TFL PUBLIC INQUIRY

Basildon Cabbies In Limbo As Residents Park In Taxi Bays. Councils Refuse To Intervene.

    Cab drivers cannot access their waiting bays outside Basildon station.

TAXI drivers have been left in limbo by a disagreement over whether their waiting bays at Basildon train station are still protected. 

Private vehicles have started parking in marked taxi bays in ’the bowl’ – the circular bowl outside Trafford House – leaving cabbies with nowhere to wait. 

The area outside Basildon station has been beset by parking problems – including illegal parking on the pavement – ever since Basildon Council granted permission to convert Trafford House into almost 400 flats, but with less than 200 parking spaces.

 

Taxi drivers have called on Essex Council, which designated the taxi waiting bays with a traffic order, to punish drivers who park in them.

But when they attempted to find our why no enforcement was taking place, no agency would take responsibility.

    Residents have started parking their cars in the designated taxi waiting bays. 

 

Essex Council said that although it had ordered the creation of the waiting bays, it had no responsibility for enforcing the rules.

County Hall referred the YA to the South Essex Parking Partnership (SEPP), run by Chelmsford City Council, saying it was responsible for enforcement.

But the SEPP responded saying that the owner of the car park – a Government body called the Homes and Communities Agency (HCA) – had instructed it to stop enforcing there.

 

When the YA relayed the SEPP’s claim to the HCA, a spokesman denied the claim, saying: “We’ve never said anything like that. We have most definitely not asked the SEPP to stop enforcing parking restrictions. We don’t know where they’ve got that from, but it’s not us. Nobody has issued any such instructions to the SEPP.”

When the YA reported the HCA’s response back to the SEPP, it cited an Essex Council document which stated that the HCA had asked for the removal of the traffic regulation order. 

The YA sent a copy of the document to the HCA and asked whether it could explain the claim. The Government body never replied. 

Ralph Morgan, of the Basildon Hackney Carriage Drivers Association, said drivers were being prevented from working outside the station, which was damaging their income. 

He called for Basildon Council to intervene in the ’chaos’, saying the taxi rank is one of the busiest in Essex, generating up to 700 journeys per day during the week. 

He said: “Enough is enough. We are trying to earn a living and help commuters get about, to make this town more prosperous. We pay £390 a year in fees to the council and they have got a duty to sort this out so that we can go about our business. They have got to get off their bums and do something.”

However, the council said it had ’no further power to intervene in the matter’.

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Italy's Taxi Drivers, Stage Wildcat Strike Over Pro-Uber Bill

Rome airports practically without taxis as drivers protest parliament vote.

Italy's taxi drivers are striking ahead of a senate vote on a raft of measures which they say could favour multinational app-based car transport companies such as Uber.

The spontaneous strike is causing major problems for commuters in the capital, particularly at the city’s Fiumicino and Ciampino airports which are currently being served by just a handful of official white cabs strike breakers.

Roman taxi drivers are staging a sit-in near Rome’s senate building, Palazzo Madama, while their counterparts in Milan and Turin are engaged in similar protests.

The Italian senate is voting on a maxi-amendment to the so-called Milleproroghe decree which traditionally follows the passage of the annual budget.

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Uber loses GST fight with the Tax Office.

More than 50,000 Uber drivers in Australia will have to pay 10 per cent GST from the first dollar they earn after the ridesharing app lost a 18-month battle with the Australian Tax Office.

In a decision handed down on Friday, the Federal Court rejected Uber's argument that its drivers should not have to pay GST because it is not providing "taxi travel" and ordered Uber pay the Tax Office's legal costs.

The decision confirms Uber drivers will have to pay 10 per cent GST on top of the 25 per cent commission to Uber regardless of how much they earn.

Uber sued the Australian Tax Office in July 2015 after the Tax Office declared from August 1, 2015, Uber drivers must pay GST because they are providing a modern equivalent of taxi service.

The court case hinged on whether Uber was providing "taxi travel" for the purposes of the GST legislation. Generally businesses with less than $75,000 turnover do not need to collect GST but this rule does not apply to taxis.

If Uber was classified as a provider of "taxi travel" its drivers would also have to pay GST even if they earn less than $75,000 a year.

Justice John Griffith of the Federal Court said the phrase "taxi travel" should be "construed broadly and not technically" and accepted the Tax Office's argument the ordinary meaning of the word "taxi" is a "vehicle available for hire by the public and which transports a passenger at his or her direction for the payment of a fare that will often, but not always, be calculated by reference to a taxi meter".

He said the fact Uber cars did not have taxi meters installed them was irrelevant because it was not essential to the ordinary meaning of the word "taxi".

Uber spokeswoman said the company is disappointed with the decision and will provide its drivers with more information "as soon as we can". The Taxi Office spokeswoman said: "It is important that Uber and other ride-sourcing providers now work co-operatively with us to help assist their drivers to understand and comply with their tax obligations and to claim their entitlements."

During the two-day hearing in June 2016, Uber argued its drivers should not have to pay GST unless they earn more than $75,000 because they are not providing taxi services.

Uber argued its drivers are not providing "taxi travel" because taxis can pick up passengers without booking using the rank and hail system but Uber cannot.

But the Tax Office quoted a number of dictionary definitions to argue the term taxi should include ride sharing services.

Although Uber drivers have been required to register for GST since August 2015, Ride Share Drivers' Association of Australia spokesman said some drivers have chosen not to register until the court decision. RSDAA represents over 700 Uber drivers.

He said the decision was "disappointing news for drivers who are already being pinched by Uber's predatory pricing model."

"It seems the courts can't differentiate between a full time enterprise and a part time pocket money job," he said.

But NSW Taxi Council chief executive Roy Wakelin-King said "the notion that somehow Uber is magically different to the taxi industry is a myth" because taxis and ridesharing services such as Uber do the same job.

"Uber drivers who claim there was uncertainty about this, once again, have not been compliant with the law and ATO should hold them to account," he said.

K & L Gates tax partner Matt Cridland said the decision means the government will have to make a policy decision as to whether the $75,000 exemption should apply to Uber and taxi drivers and tax laws need to evolve to deal with technological developments.

"There will be UberX drivers who are casual drivers who will need to pay GST, as opposed to professional drivers who attend to it full-time for their living," he said.

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More than 500 old taxis to be forced off Birmingham streets - and drivers are not happy

More than 500 black taxi cabs could be run off the road by stringent new anti-pollution measures in what has been called a ‘catastrophe’ for the trade.

Details of the new clean air policy were debated by councillors and taxi industry on the day the European Union issued a final warning to the UK over dangerously high pollution levels in 16 cities, including Birmingham and London.

Poor air quality in Birmingham is reckoned to be responsible for 520 extra deaths a year in the city, with vehicle pollution in the city centre and M6 motorway corridor the most affected areas.

The Government has already ordered the city to set up a Clean Air Zone around the city centre by 2020 or face a fine of up to £60 million. Under this high polluting commercial vehicles such as taxis, buses, lorries and coaches could be charged to go within the middle ring road

And now taxi drivers have been dealt a second blow after being told that age limits on their cars could be slashed in December to ensure they are using newer and cleaner cars. This means 530 of the oldest and highest polluting hackney cabs, 43 per cent of the 1,233 on the city’s streets, will have their licenses removed.

A further 1,428 private hire vehicles, or minicabs, out of 4,200 on the streets, would also be barred under the proposals.

But black cabs face particular problems as the new cleaner range of electric cabs produced by the London Taxi Company in Coventryare not due to go on sale until the end of this year.

Ivan Boon of TOA Taxis and the RMT union said it would be a disaster for the industry and passengers.

“Everybody wants cleaner air but this is a catastrophe for the trade. We are talking about taking five to six hundred taxis off the road by December and the new vehicles are not yet available.”

He said the expected cost of £55,000 for the new cab is an investment beyond the reach of many drivers, especially as their existing cabs will now be heavily devalued or even worthless as working vehicles.

Birmingham City Council currently allows black cabs of up to 14 years to be newly licensed and older if they are having the license renewed. It is thought to have one of the oldest fleets in the country due to its previously ‘lenient’ policy.

Government grants of £7,500 are available to drivers buying a cleaner black cab, but drivers also want more help and more time to adapt to the new rules.

Licensing committee members have agreed to 12 weeks consultation over the measures and to write to Government asking for more funding to introduce clean air measures and ease the burden on drivers.

Cllr Basharat Dad (Lab, Stechford and Yardley North) said: “We are not just talking about thousands of cars, but the livelihoods of thousands of drivers and their families.”

But cllr Habib Rehman (Lab, Springfield) reminded the committee why they are looking into the issue: “ When you go to inner city schools you see how many children are taking inhalers with their lunchboxes, its rising.”

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Uber driver fined £680 for illegally picking up passenger in Reading

Aldin Stefanov was caught illegally plying for hire when he picked up a Reading Borough Council licensing officer on Sunday, August 27

An Uber driver has been hit with a £680 fine after he was caught illegally plying for hire in Reading.

Aldin Stefanov, of Kintbury Walk, Reading, was picking up passengers in the town during Reading Festival in August 2016.

The Transport for London Uber driver was caught on Sunday, August 27 when he unwittingly picked up a Reading Borough Council licensing officer.

The 46-year-old admitted the charge at Reading Magistrates Court on Friday, February 3 and was fined £250.

He was also ordered to pay legal costs of £400 and a victim surcharge of £30.

Uber drivers are not allowed to ply for hire in Reading as the company's application for an operating licence was rejected in March 2016.

People in Reading have opened the Uber app ito search for and book cabs for local journeys since the company's application was snubbed and many of the company's minicabs are seen driving around the town looking for work outside their licensed area. 

Councillor Paul Gittings, lead member for consumer services, said: "This is a positive outcome which upholds regulations that are in place to protect the public.

"I hope cases such as this will serve as a deterrent to drivers who are tempted to work illegally in Reading.

"Reading’s licensing committee took the decision to reject Uber’s application for a private hire operating licence in March 2016.

"It is unfortunate that some drivers continue to flout this decision. 

Hopefully this prosecution sends out the message that Reading will not tolerate illegal taxi activity."

Uber says the driver's account will be deacctivated. 

Will they now be geofencing the borough to stop these illegal journeys, unlikely as they haven't down this in other areas where they are not licensed to work. 

The company said "we will deactivate the account of any driver found plying for hire. 

Editorial Comment 

This is now a nationwide problem that is steadily growing out of hand.  

The DoT needs to step in and help protect the livelihood of authorised licensed Taxi and Private Hire drivers. 

TfL have shown no appetite to help other councils and have said on many occasions this issue is nothing to do with them unless a contravention happens within their licensing area. 

Many trade associations up and down the country believe that TfL's attitude is a major factor in the escalation of this problem.   

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