Sunday, 28 April 2013

Local Government Ombudsman: Complaint against Brentwood Borough Council 16th April 2013.

The Ombudsman’s final decision:
Mr S complains that the Council failed to properly carry out tests on taxis. As a result he says the Council overcharged him over a ten year period. I have completed the investigation because the Council has agreed to pay £1000 to Mr S because of the uncertainty caused by the test problems.

The complaint
1. Mr S says Brentwood Council:
a)Failed to carry out proper emission tests between January 2001 and February
b)Failed to ensure the brake testing machine was regularly calibrated between January 2001 and January 2010.

The Ombudsman’s role and powers
2. The Ombudsman investigates complaints of fault where someone says it has caused them injustice. If the Ombudsman finds fault but no injustice, she will not ask a council to provide a remedy. If she finds both fault and injustice, she may ask for a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))

Background information
3. Mr S first complained to the Ombudsman in late 2011. In May 2012 an investigator decided the Council was at fault for not conducting proper emission tests for licensed taxis. He also decided the Council had not kept records to show when the brake testing machine had been calibrated.
4. The investigator discontinued the investigation because the Council had apologised, bought a new emissions testing machine, was keeping records and had reviewed the service. The investigator decided there was not enough evidence that Mr S had been caused an injustice to ask for a remedy.
5. Mr S asked for the decision to be reviewed. He sent new information which he said showed that the brake machine had not been calibrated. He argued the Council’s faults had cost him at least £13,000.
6. An Assistant Ombudsman decided to re-open the complaint because Mr S had provided some new information.

How I considered this complaint
7. As part of my investigation I have:
read the complaint and discussed it with Mr S’ representative;
• read the papers considered by the first investigator and his decision;
• considered information the Council provided in response to my enquiries;
• listened to a telephone recording of a conversation between Mr S and the mechanic (Mr A) who tests the Council’s brake machine (the mechanic is not a Council employee);
• considered comments the representative made in response to a provisional draft of this decision.

What I found
Licensed taxis

8. People who provide a taxi service must get a licence from the Council for each vehicle. The Council issues a licence for 12 months. The cost of a licence for a private hire vehicle is £250. There is a £42 vehicle inspection fee.
9. The Council says the vehicle inspection is a condition of the licence and the inspection fee is part of the licence. A 1995 Council newsletter says, “... the twice yearly inspection fee is part of the licence fee which Members currently allow to be paid by instalments, i.e £144 or £139 at the time of the licence application and £42 prior to each inspection.” The current information on the website says, “... the fee relating to the six-monthly vehicle inspection is payable seven days before the date of inspection.”
10. When a car fails the test the Council gives the operator an itemised notice which explains why the vehicle failed the test.
11. As part of the licence conditions the Council requires that vehicles are tested every six months at the Council’s garage. New vehicles are not tested until they are six months old.
12. The Council’s test is in addition to the MoT. After 12 months operators must ensure every Hackney Carriage taxi passes a MoT every year. Private hire vehicles must pass a MoT every year once the vehicle is more than three years old.
13. In 2007 the Council decided to adopt the MoT as the criteria for the vehicle inspection but with extra checks to assess cleanliness. The Council’s garage is not registered to do MoT tests.

Emission testing
14. As part of the six monthly tests the Council checks the emissions from each vehicle. Before each test the licence holder had to sign a declaration which said, “I understand that the inspection will be conducted in a manner which complies with the ‘Method of Inspection’ as contained in Section 6.4 of the MoT Manual for Car and Light Commercial Vehicle Testing.”
15. Information on the Government’s website says that the MoT test for emissions involves an inspector connecting the vehicle to a computer to take readings from the exhaust.

Brake testing
16. As part of the six monthly test the Council uses a machine to test the brakes. The machine should be calibrated every six months. When the mechanic tests and calibrates the machine he issues a certificate which confirms the machine is working within the limits set by the Vehicle and Operator Services Agency (VOSA).

What happened
17. Mr S is a director of a taxi firm. He has a fleet of about 60 licensed vehicles. The Council says that since 2001 it has licensed all but two of the vehicles as Hackney Carriage Vehicles.
18. The Council has checked the licensing records. The Council says that since 2001 it has licensed 465 new cars for Mr S’ firm. The Council says that Mr S had a deal with a car firm which allowed him to change vehicles every six months. The Council says Mr S liaised with the licensing manager to ensure that he got a new vehicle before the existing vehicle needed to be tested. The Council says that for most of these 465 licences Mr S did not have the Council’s vehicle test and did
not pay the test fee. Conversely, the representative says that since 2005 Mr S mainly bought second hand vehicles and has paid for many vehicle tests. He has also explained that the agreement with the car firm ended in 2005.
19. Until 2001 the Council used a machine to do the vehicle emissions test. The machine stopped working in 2001. Between 2001 and February 2010 the Council’s mechanics did a visual smoke test. In February 2010 the Council bought a new emissions testing machine.
20. The Council’s view is that the brake machine was regularly calibrated. The Council says the mechanic (Mr A) regularly visited the garage to do jobs and this included calibrating the machine. The Council has evidence to show the machine was calibrated from 2010. The Council says it failed to keep records to show the machine was calibrated before 2010.
21. Mr S disagrees the brake machine was calibrated before 2010. I have listened to a recording of a discussion about this between Mr S and Mr A. The recording is difficult to follow but suggests that Mr A was calibrating the machine but not necessarily every six months.


22. I find there has been fault by the Council. The evidence shows the emissions testing should have been carried out to the standards of the MoT test. This involves assessing the emissions with a computer. However, between 2001 and 2010 the Council’s mechanics only did a visual test. This is fault because the Council had said it would carry out the emissions test to the MoT standard.
23. There was also fault in relation to the brake calibration. The Council believes the machine was regularly tested but, before 2010, it had no records to show the calibration was taking place. So, I find there was a lack of record keeping. The Council says it is now keeping records and I have seen calibration certificates from 2011.
24. Due to the lack of records I cannot be certain whether the machine was calibrated or not. But, on balance, having listened to what Mr A said, I find it more likely than not that the machine was calibrated, but not every six months. I find it unlikely the machine was not calibrated at all between 2001 and 2010.
25. Mr S says he should receive a refund to reflect those parts of the test which the Council did not conduct properly. He estimates the Council owes him £13,000 to £16,000. He has based this on the time taken to do the ‘improper’ parts of the test (the emissions test and the brake test). He believes he paid for a proper emissions test and brake test and the Council failed to provide it. So, he says the Council should refund a percentage of what he paid. He held 678 licences between 2001 and 2010 and says the Council should provide a refund for each licence.
26. Mr S says there were cars which failed the test when they should have passed. As a result, he had to stop using the vehicle and pay £12 for a re-test. In addition, Mr S says he lost earnings while the car was suspended and he had to pay for unnecessary repairs.
27. Mr S has checked his records since 2006. He says he paid for 359 tests of which 65 resulted in failures. Mr S says that most or all of these failures were linked to the emissions test or the brake machine. He says his own mechanics check the cars before the Council test and he would expect each car to pass. Mr S has not provided copies of the test failure notices. So, he has not provided any proof that the test failures were linked to the emissions test or to the brake machine.
28. Mr S has obtained information from a garage which specialises in testing brake machines. He says the garage reports that if the machine is not regularly calibrated then the results can be inaccurate by as much as 25%. He therefore argues that it is “inconceivable” that there were not wrong test results before 2006. But, again, Mr S has not provided any proof.
29. Conversely, the Council says that all or most of the test failures for Mr S’ cars were for reasons unconnected with the emissions test or the brake machine. But, like Mr S, the Council has not provided any evidence to support its view.
30. Mr S also says that he has spent more than 160 hours trying to resolve this complaint with the Council.
31. I find Mr S has been caused an injustice. First, there is a degree of uncertainty about whether any of his cars wrongly failed the test between 2001 and 2010. There may have been some cars which failed when they should have passed. But, equally, there may have been some cars which passed when they should have failed. Mr S argues that most of the failures were wrong and directly linked to the problems with the emission testing and the brake machine. But, he has not provided any evidence to support this. Equally, the Council is clear that the failures were due to unrelated faults but has not provided any evidence in support of this. So, I cannot say that the problems did, or did not, cause any inaccurate test results. But, I do find there is some uncertainty which does represent an injustice.
32. Secondly, I find Mr S has been put to some time and trouble that could have been avoided. The complaint responses in 2011 suggested the Council regularly calibrated the brake machine. But there is no evidence to support this. Mr S has also said that a licensing officer had to be present during every test so it is surprising that the Council did not identify the problems with the emissions testing earlier. So, I find Mr S has been caused an injustice in terms of the time he has spent pursuing this complaint.
33. I do not agree with Mr S’s argument that the Council should refund a percentage of every test fee he has paid since 2001. The Council has explained that the test fee is part of the licence and Mr S had to pay it regardless of how the test was carried out. The Council did not do the emissions test in the way it said it would but Mr S would still have had to pay the same amount. In addition, I find the calibration was done to some extent so it is not possible to say that every test was faulty.
34. Mr S has argued that the law says that licence fees must be directly linked to the costs. Basically, the Council can only charge enough to cover its costs, not to make a profit. I have decided not to pursue this part of the complaint further. This is because Mr S has sent a pre-action letter to the Council seeking £99,000 on the basis that the Council has allegedly failed to properly determine the licence fees. Further, his solicitor told the Council they were issuing proceedings in the County Court. The law says the Ombudsman cannot investigate any matter that has been placed before the courts. And, even if the legal action has not yet started, the law also says that the Ombudsman will not usually investigate a complaint if there is a legal remedy available. If Mr S wishes to argue that the licence fee is unlawful then that is a matter for the courts.

Agreed action
35. I asked the Council to provide a financial remedy of £1000 to Mr S. This is because of the uncertainty and to reflect his time and trouble.
36. The Council agreed to my request. In agreeing to make the payment the Council has continued to assert that it does not agree that Mr S incurred the losses he has claimed. But, the Council does not think it appropriate to use money and resources checking records from 2001. The Council says it is not accepting liability for any claim that may be made by Mr S and says it will “vigorously defend” its position if Mr S takes legal action about this issue.

37. I have completed the investigation. I find the Council failed to ensure the emissions testing was carried out in the way it said it would be done. And it failed to ensure the brake machine was calibrated every six months. It also failed to keep
adequate records. This caused an injustice to Mr S in terms of uncertainty and the time he spent dealing with the complaint. The Council has agreed to pay £1000 to remedy this injustice and I find this is a fair and proportionate way to settle the complaint.
Investigator’s decision on behalf of the Ombudsman

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