CONTRACT EXEMPTION


From 1976 until January 2008 the vast majority of local authorities and members of our industry fought against the original wording of the 1976 Act which allowed anybody with a written contract to supply transport for longer than seven days to be excused from licensing. I do have to say that when that section 75(1)(b) was repealed, many local authorities leapt up and down with joy and happiness in being able to at last prevent the trickery which was being used to avoid getting licensed or having the right insurance. Many people in the trade were delighted to be able to stop totally unlicensed vehicles running in and out of hotels and hospitals illegally. It is perfectly true that the industry maintained the view that these drivers were robbing them of work. In some cases that may have been correct, but there were very few court cases which tested that exemption. Any piece of paper which said “I want you for over seven days” was seen to be an adequate defence. In many areas, however, many councils took no action whatsoever, and the issues continued – and this Association certainly received calls from all over the country asking why this or that group had not been sorted out. And they had not been sorted out because the council involved had nei- ther the staff, the time or the resources with which to involve themselves. So some time later, another Government report came out – that report came out in November 2009 and it is mentioned in this consultation doc- ument – which says that “it don’t seem to have done much, do it, this ‘ere exemption removal??” So shouldn’t we have it back in again? You might ask why, when 32 years have been spent shouting and yelling about this to actually get it taken out, only four years have passed before they are trying to bring it back in again. If you have got the energy, go to page 172 of the document and read paragraphs 1444 to 1449. If you haven’t got the document, let me just give you part of one of those para- graphs from 1445: “The rationale for contract exemption was that where long term contractual arrangements are in place, the contracting parties can put in place sufficient safeguards in respect of vetting vehicles and drivers on their own terms. In these cases there is no need for the burdens of general licensing criteria to be met. Public bodies in particular such as the NHS and education authorities need to set up large contracts for trans- porting children and vulnerable individuals. Such organisations are best placed to set standards and monitor their attainment.” So let us read between the lines: All hospital work and school contracts will be removed from the taxi and private hire world. What would that mean to you? Shortly before this year’s annual Taxi and Private Hire Exhibition, one of our members asked Somerset County Council a Freedom of Infor- mation request about their use of volunteer drivers. The reply said that they used 241 drivers, who had covered 3,335,896 miles in the 2011/12 financial year. And of these drivers, 127 had driven 10,000 miles or more. These volunteer drivers were used for Social Care work, health work and some school work. The problem is that, without a contract exemption law, under what legal umbrella do these drivers work? It couldn’t really be regarded as occasional social assistance if they’re doing over 10,000 miles annually; if you get your calculator out and divide that three million- odd by 241 drivers, you will see that most of them exceeded standard mileage for private use. And what was their insurable/employment status? On the back of this, the NPHA has written to all county councils and Uni- tary Authorities asking for this information. But the point is that there is a yawning gap in transport supplies and the legislation, that runs between section 19 and 21 of the Transport Act 1985 and taxi and private hire licensing legislation. Section 19 covers the use of vehicles by charitable groups, such as the Boy Scouts and Girl Guides that have their own vehi- cles for transporting their members for various different reasons. Section 21 is for special use of charitable bus routes, where no other transport would be available. The yawning pit in the middle is perhaps universally known as “voluntary work”. There clearly appears to be two types of voluntary work: one is where, especially in rural areas, a retired or semi-retired person with a car can offer their services to occasionally take someone in their area for a hospi- tal appointment or the doctor’s surgery because they have no transport of their own – and indeed, there may not be a bus service in that area. These persons are giving their time for “an occasional social need”. They are not working; they might do a few hundred miles a year, and I have got no problems whatsoever with these people. Many of them are part of volun- tary groups which are clearly available all over the country. But then one of the questions that we asked in our FOI letter is: “Many councils put activities such as school contracts out to tender. Does your council allow volunteer groups to tender for these contracts?” A goodly number of those replies received back so far have said Yes – to which councils my question is: Is this not an admission by these volunteer groups that they were entering the commercial world, rather than being available for “occasional social need” – or in court cases, could they pass the test of whether they are “beyond the bounds of mere social kindness”? I think not.


PAGE 10


I know for a fact that many of you will have evidence of all sorts of contract exemption nonsense, because up to four years ago you were sending it to me on a virtual daily basis. Can I therefore ask you, in responding to this question, whether you think Yes or No, send a copy of the evidence which made you think this way in the first place. If you are a local authority that has clear evidence that the removal of contract exemption dragged deliberate chances back into the licensing zone, then please present this evidence. I do not accept that 32 years of hard work could or should vanish in this way. In replying also, perhaps you should ask why this should form any part of our legislation in any event. Surely the gap between sections 19 and 21 and our taxi/PHV law should be covered by their own bit of legis- lation. Perhaps also your thoughts on identification, or any evidence you may have about lack of identification, should be included. If the education authority, or VOSA, or Social Services, go to check out the transport to school on a Monday morning, and a taxi/PHV turns up with passengers, either of those two types of vehicle will have a plate identify- ing the vehicle, and a badge with a photograph identifying the driver. If a “volunteer” car turns up, who is driving it? He might possibly give his name as Mr Jones, but he might be doing the job for Mr Jones, who is his neighbour and who couldn’t do the job today because he had flu. It’s a pity that Mr Jones did not know that his neighbour was a paedophile. Whilst it is certain that most local authorities would not allow anybody to take a child without the driver being CRB checked, it is not possible for onward checks to be made without some personal ID. If the car has had an MoT test and is part of the volunteer scheme, then why hasn’t it got a little green disc in the windscreen saying so? In anonymity lies danger. This is not a licence; it is merely a very appropriate means of applying public safety to this transport. Let’s get back to wedding and funeral cars. Why on earth this has come up at all, I don’t know. In 36 years I have certainly not heard lots of com- plaints about wedding and funeral vehicles. We’ve had some complaints about unlicensed chauffeur cars, but is that a wedding car? Let me put something into your head for consideration before you respond to this particular item. I already have far too many complaints about there being too many driv- ers on the street for anyone to be earning a gracious living and not working 24/7. As far as I am aware, the vast majority – I would say 99.9 per cent – of all wedding and funeral cars don’t do anything but weddings and funerals. However, because that is their exclusive occupation they have special insurance which is nothing like ours; they don’t have licensing fees to pay, and all the other bits and pieces for which you have to stick your hands in your pockets each and every year. If you now force these individuals to have a licence and involve them in all of this extra cost, how many of those black Mercedes are not going to become, in part, chauffeur cars to earn that extra money? Got a white Jaguar? Got to be a bit more comfortable than a London black cab to go to Heathrow. Oh yes, there are plenty of licensed chauffeur cars in Lon- don; there are plenty of wedding and funeral cars queuing up to take away part of your work if they are forced to be licensed. Of course you are the ones with the evidence...


So to these questions, do not answer just Yes or No – say much more in support of your answers.


INTRODUCING NATIONAL MINIMUM STANDARDS


There are plenty of words in the document and questions/proposals about standards. But answering Yes or No does not give your view on what those standards should be. More importantly, may I suggest that you need to look at the word “minimum”. There is a strong body of thought that after 36 years the 342 councils in England and Wales have, inch by inch, yard by yard, depending on the politics of the council and the number of times it has changed in those 36 years, conditions of licence that are all different. If there are two that match perfectly, it is probably because they are part of a group that has decided to work together; otherwise sitting in a room with 342 copies of the condi- tions you could waste an awful lot of time searching for replicas. Yes, in sensible consideration, one might suggest that ”minimum” should include for drivers a CRB check, a medical, perhaps a driving test, per- haps a BTEC, perhaps a local knowledge test, or the ability to speak the language. Perhaps the vehicle should have four doors and four wheels; be right hand drive; and be able to pass an MoT test. But if you set this as a minimum standard, you then allow local authorities to work out the rest of the rules for themselves. Sorry – isn’t that where we’ve been for the last 36 years??!! The car indeed may have four doors and wheels and be able to pass an MoT test, but going round the country, the back seat in the vehicle might have to be 85 inches across, with 17 feet of knee room, 23 inches of head room. If it has eight seats, it might have to have one taken out. If it has tinted windows, it might have to have plain glass. If it is a hackney carriage it might have to be painted blue/green/orange/purple, and have eight-foot signs on the roof. If it is private hire, it might have to have


PHTM JULY 2012


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