"Before a type of vehicle may be licensed as a hackney carriage it needs to be approved by the City Council as a suitable vehicle for use as a taxi cab in Liverpool. The Council has accepted that purpose-built taxis which comply with the conditions of fitness of the London Carriage Office are suitable for such use. Other types of vehicle are considered on their merits, but to date no vehicle which is unable to meet the conditions of fitness has been approved by the Council."
"lays down critical standards which vehicles must attain before being licensed as a hackney carriage. The Licensing Committee makes reference to those standards. If a vehicle falls short of those standards it will generally not be approved for use as a hackney carriage". 2. The impugned decision 12. On31 October 2007 , the defendant’s Licensing Committee first considered the matter. It heard a presentation from Mr Fryer, an employee of the second claimants. It heard from the first claimant, Mrs Lunt, and from a Mr Bruce, who was chair of the Liverpool Wheelchair Users Group. 13. The minutes record in summary form the gist of what they were being told, which includes the following: "
"A specific application for the approval of a Peugeot E7 vehicle to be used as a hackney carriage presents the potential for a dis-benefit to wheelchair users if the vehicle is not approved. Those wheelchair users who wish to be accompanied by several of their ambulant friends have move manoeuvrability and be able to travel in a forward as well as a rear facing position would not be able to do so by access to the current wheelchair accessible fleet. The Peugeot E7 is a larger vehicle and by virtue of its size creates more space for manoeuvre and placement of such wheelchairs. However due to the vehicles size and the engineering considerations associated with the design, it can not conform to the minimum turning circle requirements associated with hackney carriages and is higher off the ground creating increased wheelchair ramp angles."
"The Licensing Committee will consider any application on its merits submitted by any vehicle manufacturer who designs and builds a vehicle which is constructed to be used for public hire activity." 17. That report was dated the18th March 2008 and was before the Licensing Committee when it met to take its decision later that month. It does not appear to have been supplied to the first claimant or others with whom there had been consultation before the decision was taken. Mr Edwards prepared a further report for the meeting of the Council in which similar language was used and pointing out, as is apparent from the Equality Impact Assessment, that the E7 does not meet the tight turning circle requirements of the London Public Carriage Office specifications and the London taxi. That is agreed between the parties. The benefits of the turning circle and its impact on health and safety are not agreed. 18. It is pertinent to point out some matters in the report which have been the subject of critical comment and appear to in part be inaccurate. i. The report states that the "
"The Liverpool Wheelchair Users Group in conjunction with Merseyside Coalition of Inclusive Living has made representations in support of the E7 and has requested that the vehicle be approved as it provides more room and comfort for both wheelchair users and those ambulant friends who accompany them. The groups have expressed the view that the ramps associated with the E7 vehicle are more reassuring than normal TX ramps. The Wheelchair Users Group advised the Licensing Unit that some 12,000 wheelchair users would find the alternative choice of the E7 to be a positive benefit in terms of accessible transport."
"1.1.2 The present public hire taxi fleet is not inclusive for many wheelchair using residents and visitors. This is because the only existing vehicles ... make it awkward and time consuming to load wheelchair users and make it difficult to turn and secure the wheelchair and occupant correctly within the cab. ... 1.1.7. A survey of 100 journeys was undertaken by wheelchair users in London-style hackney cabs. This showed that, due to the lack of turning space to manoeuvre the wheelchair within the vehicle, only on four occasions was the wheelchair user turned into place in the correct direction for travel and on only one occasion were the wheelchair and passenger restraints correctly applied. 1.1.8. The Lowland Report therefore provides firm evidence that in 99 per cent of journeys wheelchair using passengers were left to travel in a manner which is clearly highly dangerous, with no seat belt for the passenger and not even anything to hold his/her seat to the vehicle. ... 1.1.12. The practice of carrying wheelchair passengers facing sideways, entirely unsecured and with no seat belt, places all such passengers using a publicly licensed service at grave risk of injury or death in the event of an accident. Disabled groups and Taxi Association representatives alike confirm that a key barrier giving rise to this appalling situation is the limited turning area available in the rear of a London-style taxi. 1.1.13. Numerous organisations have commented on the important contribution made by modern-style hackney taxis to improving accessibility for wheelchair users. In particular, organisations representing 12,000 wheelchair users in the report argue strongly against a one size fits all approach in specifying services or products to meet the needs of everyone in society. Having tested modern-style hackney taxis, wheelchair users recognise clear access and safety benefits for many wheelchair users compared with the existing Liverpool taxi fleet."
"• In only four of the 100 taxi journeys taken was the wheelchair turned to face rearwards in the correct direction of travel. In all cases this required a degree of bumping and shuffling in order to get the wheelchair turned, which was uncomfortable for the wheelchair occupant. • In only one journey was the wheelchair both turned to face away from the direction of travel and also properly secured within the taxi. • In only one journey was the seat belt and seat belt extension provided and correctly fitting. • In all other journeys (96 per cent) the wheelchair either remained side on or at some other angle. In these situations neither the wheelchair nor the passenger could be safely secured and the passenger tended to feel uneasy at bends and when stopping. • For those taxi drivers that did not turn the wheelchair to face away from the direction of travel they either made no comment regarding this or stated that the wheelchair was too large to turn inside the vehicle. • In 94 per cent of the journeys taken the wheelchair passenger stated that they felt either fairly or very unsafe during the journey. Concluding comments • The experience of a wheelchair user whilst travelling on a London-style taxi was, almost without exception, uncomfortable and, in particular, unsafe. The predominant issue contributing to this situation was the lack of space available in which to manoeuvre the wheelchair and occupant into a safe travelling position." 25. The general tenor of the second claimant's submissions in the Lowland Report were supported by other documentary material before the Committee, including the letter from Mr Bruce and the media information release to which reference has already been made. The Committee also heard evidence from another wheelchair user currently unconnected with the interest groups that Mr Bruce, Mrs Price and Mrs Lunt were connected with, and that was a Mr Cronin. He in fact wrote to the Council on7 April 2008 indicating that the minutes mis-recorded the nub of what he was saying, and said that he did not support either side in this debate and has never even seen the E7-style cab. His letter says: "
"(1) Except as provided by section 25 no civil or criminal proceedings may be brought against any person in respect of an act merely because the act is unlawful under Part III. (2) Sub-paragraph (1) does not prevent the making of an application for judicial review." 35. Second, the law on the comparable duty in race relations claims demonstrate that a challenge can be made by way of judicial review even where there is a factual dispute as to what the defendant's practice amounts to: see Roma Rights[2004] UKHL 55 ;[2005] 2 AC 1 at paragraphs [96] to [97]; see also the decision in R(E) v Governing Body of the JFS[2008] EWHC 1535/1536 (Admin) , a decision of Munby J reversed by the Court of Appeal on other grounds. The conclusion of suitability for judicial review was not challenged or disturbed in the Court of Appeal. 36. Third, I do not accept that the factual disputes that exist between the parties as to what was said to Mr Edwards in consultation prevents this challenge in judicial review proceedings. I do not need to resolve all the differences in the witness statements, although I find the witness statements of Mrs Lunt, Mrs Price and Mr Bruce compelling, whereas that of Mr Edwards is far less clear and precise, and his reports have been shown to be inaccurate in a number of ways on one or two other topics. 37.However, in my judgment, at least the following conclusions results from the examination of the materials in the case: (i) There was sufficient documentary evidence before the Committee that some wheelchair users could not access the London taxi for space reasons, and that was not a question of either driver error or mere convenience or preference of wheelchair users. (ii) Since it is now an agreed fact that Mrs Lunt cannot access a London taxi in her wheelchair, save with the difficulty and in the unsafe sideways manner that has been demonstrated, and that there has been no material change of circumstances since October 2007 and today, then at the least Mr Edwards must have seriously misunderstood what was being said to him. If he did not understand what was being said to him, in my judgment he was required to explore the basis of the physical difficulties with manoeuvring the taxi to a safe position that was being described to him. 38. Judicial review enables the court to intervene where there has either been a procedural failure to explore the relevant question fairly and effectively or at all, or having explored it, bases a decision on a critical factual question that proves by the time the judicial review proceedings are brought to have been wrong: see in that context the decision in the case of E v the Secretary of State[2004] EWCA Civ 49 ;[2004] QB 1044 , which provides, so far as material: "61. As the passage cited by Lord Slynn shows, the editors of the current edition of De Smith (unlike Wade and Forsyth) are somewhat tentative as to whether this is a separate ground of review: "
"2. Background Although this report covers only the experiences of the six wheelchair users a range of wheelchairs were included - both manual and electric. It emerged very clearly that there are three major difficulties to be taken into account when designing vehicles to meet the needs of wheelchair users: (a) differences in the individual's size and weight; (b) differences in the nature of the disability; and (c) differences in the wheelchair design. These difficulties were compounded by the fact that the individual's size and the nature of their disability may require the wheelchair to be set up differently to meet the individual's needs. So, even though the wheelchair design may be standard, if (for example) the occupant requires the foot rests to be raised this can make it difficult or impossible for the passenger to get into or turn around in the vehicle. Another passenger with the same wheelchair would not have such difficulties. It should also be noted that two of the wheelchairs used in this study were large electric wheelchairs. These were of the same design but set up very differently. While these large, electric wheelchairs may not be as widely used as smaller, manual wheelchairs, they are increasing in popularity. It is also likely that for people wishing to travel independently on public transport they represent a greater proportion of wheelchairs in use than for the general disabled population. It is essential, therefore, that any future vehicle designs are able to accommodate large, electric wheelchairs. Previous research conducted by Surface Transport has shown that a major issue for disabled passengers on public transport is the desire to travel with their partner, friends and to be able to carry on and store shopping, luggage and/or medical supplies and aids. It should be recognised also that for many wheelchair users their friends or partners are also wheelchair users. Therefore, a taxi that can only accommodate one wheelchair is not acceptable. Fully accessible taxis need to be evaluated not simply as to whether the vehicle is accessible and comfortable for the wheelchair user but also whether it meets all their travel wishes and requirements. ... 3.2. In the taxi Once the wheelchair user had managed to get into the taxi they were then faced with the problem of turning the chair around to use the safety harness. This was impossible in the two standard, London taxis even for the manual wheelchairs (and the electric wheelchairs could not be accommodated at all). The occupant, therefore, was forced to ride sideways to the direction of travel and without a safety harness. During this study no vehicle was allowed to move off where it was felt that the occupant was unsafe or the seating arrangement illegal. The drivers said, however, that on the street they would be prepared to carry a wheelchair user in a sideways position without a safety harness if the passenger was prepared to take the risk. Consideration should be given, not only to the safety and legal issues, but also the validity of insurance under these circumstances."
"2.8.8. If it is was shown that the TRC was unequivocally unsafe, we would recommend a licensing condition that forbids the use of U-turn manoeuvres by taxis. However we agree with the PCO conclusions that there is no over-riding evidence either way regarding the safety risks of U-turns against 3 point turns. Nevertheless, unlike the PCO, we do not consider this a reason to retain the TCR. 2.8.9. In any case, all vehicles used as taxis must meet the appropriate standards for European Whole Vehicle Type approval. This includes vehicles used as taxis that do not have the TTC property. Although very useful, the results from our surveys our consultation exercise and the details and arguments from the PCO report reviewed above have not persuaded us that the TCR is essential to the taxi trade in terms of providing a safe working environment. Given that its inclusion may be detrimental to the broader interests of the trade, especially in the longer term, we adhere to our original recommendation that Condition 181 should be removed from The City of Edinburgh Council's taxi licensing conditions." 52. On reconsideration of this matter, all this material will be available along with the material originally supplied. I therefore propose to quash the decision and remit it for reconsideration. What then follows in this judgment are my conclusions on the disputed legal issues that should inform that reconsideration. 6. Relevant class under section 21(B) and (E) 53. A detailed exposition of the DDA section 21 is not now necessary. Ms Patterson did not dispute Ms Rose's suggested six-step approach to section 21 that a court and a public authority will need to address in making decisions under it. 1. Did the Council have a practice policy or procedure? 2. Did that practice policy or procedure make it impossible or unreasonably difficult for disabled persons to receive any benefit that is, or may be, conferred by the Council? 3. If so, is it under a duty to take such steps as is reasonable in all the circumstances of the case for it to change that practice policy and procedure so it no longer has that effect? 4. Has the Council failed to comply with its duty to take such steps? 5. If so, is the effect of that failure such as to make it unreasonably difficult for Mrs Lunt to access such benefit? 6. If so, can the Council show that its failure to comply is justified in that either- (a) it reasonably holds an opinion that the non-compliance is necessary in order not to endanger the health or safety of any other person; or (b) its failure is justified as a proportionate means of achieving another legitimate aim? 54. That sequence of decisions is identified in the legislation and is supported by the decision of the Court of Appeal in Roads v Central Trains[2004] EWCA Civ 1541 . In that case a wheelchair user sued the train company because he complained that he could not cross over from one track to another in order to catch a train to Norwich. It was common ground that he could not use the footbridge. There was a track that crossed the line that could be used, but the uneven ground presented perils to wheelchair users in general and the claimant in particular. 55. The train company contended that it did not have to provide a wheelchair accessible vehicle to enable the claimant to cross the line but that a reasonable adjustment was to require him to travel in the opposite direction and change trains there in order to continue his journey. 56. Sedley LJ upheld the finding of discrimination made in the County Court and made the following observations: "11. It is desirable first to say something about the cross-appeal. Manifestly no single feature of premises will obstruct access for all disabled persons or - in most cases - for disabled persons generally. In the present case, for instance, the footbridge is not likely to present an insuperable problem for blind people. The phrase 'disabled persons' in section 21(2) must therefore be directing attention to features which impede persons with one or more kinds of disability: here, those whose disability makes them dependent on a wheelchair. The reason why it is expressed in this way and not by reference to the individual claimant is that section 21 sets out a duty resting on service providers. They cannot be expected to anticipate the needs of every individual who may use their service, but what they are required to think about and provide for are features which may impede persons with particular kinds of disability - impaired vision, impaired mobility and so on. Thus the practical way of applying section 21 in discrimination proceedings will usually be to focus the question and the answer on people with the same kind of disability as the claimant. 12. The personal right created by section 19 of the DDA operates by fastening a cause of action on to the section 21 duty if the effect of a breach of the duty is "to make it impossible or unreasonably difficult for the disabled person to make use" of the service in question. Thus there is a double test, albeit both limbs use the same phraseology: first (in paraphrase), does the particular feature impede people with one or more kinds of disability; secondly, if it does, has it impeded the claimant? ... 26. ... I do accept, however, that it is not necessary, in order to trigger the section 21(2) duty, for the feature in question to cause unreasonable difficulty for all or most disabled persons: any significant impact on, say, wheelchair users as a class will in my judgment suffice. The question may often have to be answered without reference to direct evidence from which some kind of statistical analysis can be made: indeed the assembly of such evidence, whether pro or con, may well be invidious or arbitrary and therefore an inappropriate exercise to attempt. Judges are likelier to be assisted by their own appraisal and, where necessary, expert evidence." 57. In my judgment, Sedley LJ was not there stating that, as a matter of law that in every case of this sort the relevant class was the group of wheelchair users was the group of wheelchair users as a whole, and for s.21 (2) to bite there has to be a denial of access to a benefit by that class as a whole undifferentiated as to the size of the chair or the particular disability that may distinguish one group of wheelchair users from another. I observe that the distinction between types of wheelchairs was not the issue in that case, and such an approach would be contrary to the whole tenor and purpose of the Act. 58. The court has been assisted by the intervention of the intervenor (now called the Equalities and Human Rights Commission). Ms Genn appeared for them and drew the court's attention to some material, including the Code of Practice issued by the former Disability Rights Commission that is an aid to decision-making in this field. Paragraphs 6.4 and 6.36 provide as follows: "6.4. The policy of the Act is not a minimalist policy of simply ensuring that some access is available to disabled people; it is, so far as is reasonably practicable, to approximate the access enjoyed by disabled people to that enjoyed by the rest of the public. Accordingly, the purpose of the duty to make reasonable adjustments is to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large. ... 6.36. However, when considering whether services are unreasonably difficult for disabled people to use or whether disabled people’s experiences are unreasonably adverse, service providers should take account of whether the time, inconvenience effort, discomfort, anxiety or loss of dignity entailed in using the service would be considered unreasonable by other people if they had to endure similar difficulties ..."
"Where there is only one practicable solution, it may have to be treated as reasonable even if it is demeaning or onerous for disabled people to use it. If on the other hand there is a range of solutions, the fact that one of them, if it stood alone, would satisfy section 21(2)(d) may not be enough to afford a defence. This is because the policy of the Act, as I would accept, is what it was held to be by Mynors Ch (albeit by way of restricting the duty) in In re Holy Cross, Pershore[2002] Fam 1 , §105: "to provide access to a service as close as it is reasonably possible to get to the standard normally offered to the public at large"
"Every public authority shall in carrying out its functions have due regard to – (a) the need to eliminate discrimination that is unlawful under this Act; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life." 62. Both sides accept that this is a mandatory relevant consideration to be considered, even apart from section 21 duties. Clearly a proper analysis of the section 21 duties on reconsideration may well reveal unjustified discriminatory treatment that requires addressing. The Council's retention of the turning circle requirement in its policy is one that makes it more difficult for a class of wheelchair users to access public hire taxis. 63. It is agreed that the proper approach to section 49 is set out in the decision of the Divisional Court in the case of R(on the application of Judy Brown) v Secretary of State for Work and Pensions[2008] EWHC 3158 , given on18 December 2008 . All of the judgment of Scott Baker LJ at paragraphs [79] to [96] is of interest, but the passages at [90] to [96] are particularly relevant for the guidance of the decision-makers and provide as follows: "90. Subject to these qualifications, how, in practice, does the public authority fulfil its duty to have "due regard" to the identified goals that are set out in section 49A(1)? An examination of the cases to which we were referred suggests that the following general principles can be tentatively put forward. First, those in the public authority who have to take decisions that do or might affect disabled people must be made aware of their duty to have "due regard" to the identified goals: compare, in a race relations context R(Watkins - Singh) v Governing Body of Aberdare Girls' High School[2008] EWHC 1865 at paragraph 114 per Silber J. Thus, an incomplete or erroneous appreciation of the duties will mean that "due regard" has not been given to them: see, in a race relations case, the remarks of Moses LJ in R (Kaur and Shah) v London Borough of Ealing[2008] EWHC 2062 (Admin) at paragraph 45. 91. Secondly, the "due regard" duty must be fulfilled before and at the time that a particular policy that will or might affect disabled people is being considered by the public authority in question. It involves a conscious approach and state of mind. On this compare, in the context of race relations: R(Elias) v Secretary of State for Defence[2006] 1 WLR 3213 at para 274 per Arden LJ. Attempts to justify a decision as being consistent with the exercise of the duty when it was not, in fact, considered before the decision, are not enough to discharge the duty: compare, in the race relations context, the remarks of Buxton LJ in R(C) v Secretary of State for Justice[2008] EWCA Civ 882 at paragraph 49. 92. Thirdly, the duty must be exercised in substance, with rigour and with an open mind. The duty has to be integrated within the discharge of the public functions of the authority. It is not a question of "ticking boxes"
"26. Even if the national regulations at issue do not have the aim or effect of treating goods coming from other Member States less favourably, which is for the national court to ascertain, the restriction which they impose on the use of a product in the territory of a Member State may, depending on its scope, have a considerable influence on the behaviour of consumers, which may, in turn, affect the access of that product to the market of that Member State (see to that effect, Commission v Italy, paragraph 56). 27. Consumers, knowing that the use permitted by such regulations is very limited, have only a limited interest in buying that product (see to that effect, Commission v Italy, paragraph 57)." 69. Ms Patterson accepts that these rules apply to local emanations of the state such as local authorities, if the restrictions resulting from the maintenance of the licensing policy requiring the turning circle requirement to be met have the effect set out in the judgment of the ECJ, namely did they prevent or greatly restrict the use of the product? 70. There is some difficulty in applying these principles developed in case law that concerned national rules of scope and application to decisions of local authorities applicable in only one region of the state. I accept that Liverpool is one of the great cities of the United Kingdom and the market for public hire vehicles there is a significant one. Further, I am conscious that the policy applied by Liverpool is also applied by London and Manchester, and the consequences of this judgment is that there will be broader implications than merely the local ones. 71. I consider that the policy adopted by the defendant results in the prevention or greatly restricted use in the city of Liverpool of the Tepee Expert chassis base for the very purpose for which it is imported by the second claimant, namely as a public hire taxi. 72. I accept Ms Patterson's submission that this is not a product prohibition as the product can be used as a people carrier or private hire vehicle without conflict with the policy, and some vehicles were imported by the second claimant for this purpose. It does appear, however, that there are at present no private hire vehicles authorised by the defendant in Liverpool that consist of an E7-style taxi. However, a loss of access to a market of some 1400 public hire vehicles is a considerable one. 73. In evidence submitted late in the hearing of this case that the defendants have not yet had a chance to check and respond to, Mr Gow for the second claimant explains how he reached the estimate of approximately 80 new registered taxi vehicles entering the market each year. He does that by reference to a postcode, which is accepted is somewhat broader than the city of Liverpool itself. Based on past experiences of Allied in cities of a similar size, if permitted to do so, Allied would hope to be making sales of some 48 vehicles in the first year of opportunity in Liverpool. That represents some 7.5 per cent of its total UK sales of the E7 taxi. Such a level of sales would equate to an additional£1 million in turnover for the company. 74. In my judgment, the policy provides a substantial restriction on the use of the vehicle in Liverpool, as the E7 is designed specifically as a public hire taxi, but it cannot be sold for such a purpose in Liverpool because the policy being impugned prevents its use as such. 9. Justification 75. I do not accept Ms Rose's further submission that as there is harmonising EU legislation in the field, the national or local authority has no right to conduct its own safety and proportionality assessment to justify the interference with the Article 28 right. 76. In my judgment, the issue of the safety of the E7 as a public hire vehicle is different from its use as a passenger vehicle per se. Some support for such a distinction can be derived from a decision of the Divisional Court in Chauffeur Bikes v Leeds City Council[2005] EWHC (Admin) 2369 ; [2006] 170 JP 24 at para [17]. 77. The fact that the Peugeot vehicle meets EU requirements for safety specification as a vehicle is thus not conclusive of the question of justification. It will be for the Council on reconsideration of the case to justify the maintenance of the turning circle, or indeed any other requirement that it considers relevant if it continues to believe that, for example sliding doors do represent a safety issue in Liverpool in public hire taxis. However, justification must be for a legitimate end. Here, it would be the safety of the public. 78. Second, the Council must show that its restrictions are proportionate and no more intrusive than is needed to give effect to the legitimate end. In this context, I accept the claimant's submission that little assistance can be derived from the approach of the House of Lords and Lord Bingham in Countryside Alliance[2008] 1 AC 719 at paragraph [50], where the justification of any restriction on the use of Irish horses was on morality grounds set out in a primary Act of Parliament that had been the subject of intensive and very prolonged debate. 79. There is recent guidance given by the European Commission, summarising the case law of the ECJ in its document "