Les Hoath (Chairman) London Suburban Taxi-drivers’ Coalition, Gives Updates On Sutton On Demand Buses And TfL's Lack Of Taxi Rank Enforcement

Taxi Leaks has been asked to post the following information as a follow up to two articles posted on Taxi Leaks. https://andersonshelter.blogspot.com/2019/10/a-pilot-of-gosutton-on-demand-bus.html?m=1

Th first update pertains to the vehicles being used as a 'bus service' in Sutton, which under legislation should have more than 9 seats, charge per person, and stick to a ridged route and time table.
So why are the vehicles and drivers licensed as PHV & PHD.

What is ‘hire or reward’?
Where minibuses are operated as a core business activity for personal or commercial profit, this is deemed to be for ‘hire or reward’. Hire or reward' encompasses any payment in cash or kind by (or on behalf of) passengers which gives them the right to be carried.

Some commercial businesses i.e private nursing homes and school nurseries etc, operate minibuses as a small part of their business activity. In these cases, because the business gets paid a fee by their clients to be residents of their home, or children in their care, which indirectly includes the use of the minibus, this would be classed as ‘hire or reward’. Other examples of ‘hire or reward’ include where petrol money has been taken for taking children to school every day; or where courtesy coaches have been provided by a hotel as part of their amenities.

If the minibus is to be used for 'Hire and Reward', then a Passenger Carrying Vehicle (PCV) - Category D Licence is required.


Driving a mini-bus with nine seats or more, for hire or reward
In most circumstances you will need to obtain passenger carrying vehicle entitlement (PCV) which will involve a requirement to meet higher medical standards and take a further driving test. You will need to apply to your appropriate Traffic Commissioner and fulfil the necessary legal requirements. If you are being paid to drive a minibus for hire or reward under a PCV Operator’s Licence, you can only do so if you have full Category D1 entitlement obtained through the passing of the theory and practical test for this class of vehicle irrespective of when you passed your driving test to drive a car.

However, up to two vehicles each carrying no more than sixteen passesngers can be used for hire or reward under a restricted PCV Operator’s licence by a person or company that is not in the business of carrying passengers in vehicles adapted to carry more than eight passengers i.e by a taxi firm, where use of this size vehicle is not ‘regular’.

If you drive a minibus for an organisation under the minibus or community bus permit scheme, you will not need to have the higher PCV entitlements. Application can be made to a voluntary organisation that is acting as an umbrella body or alternatively the Traffic Commissioner.

 PCV (PSV)
Getting a PCV driving licence (previously known as a PSV - Public Service Vehicle)

If you want a licence to drive a minibus,and you currently hold a valid full driving licence you will need to apply to the Driver and Vehicle Licensing Agency (DVLA) for a provisional entitlement to drive a PCV. You will need to complete the application form D2 and the medical report form D4. These are available from the DVLA form ordering service. The D4 has to be completed by a doctor (including a doctor’s fee of £50-£70) and you will need to meet the PCV eyesight requirements. There are also requirements ie. being of good character and over 21 years of age.

The UK driving theory test was introduced in July 1996 as a written examination and updated to a computer based test in 2000. The test is conducted by the DSA (Driving Standards Agency). The PCV (D1) driving test is similar to the test taken by coach drivers, only the vehicle you would drive is a minibus. The Driver CPC Module 1 PCV theory test costs £50.00 and.is divided into two separate parts; the Multiple Choice Test (100 questions) £35.00 and the Hazard Perception Test (19 interactive clips) £15.00.

The multiple choice questions are about a wide range of driving related topics such as  the HIghway Code, vehicle weights and dimensions, drivers' hours, the carriage of passengers, hazard perception, environmental issues plus other matters relating to passenger carrying vehicles and driving law. Mock theory tests can be found on the DSA website www.dvsa.gov.uk

The second part is the Hazard perception test which must be passed at the same time.  The pass mark for the multiple choice part of the theory test is now 51 out of 60 . Those taking LGV or PCV (lorry or bus) tests must also score at least 50 out of 75 in the hazard perception test. If you pass one part and fail the other you'll fail the whole test, and you'll need to take both parts again.

From 1 January 2012, new theory tests will be introduced using questions and answers that the candidates will not have had access to - a change to the Q&A banks that had previously been published by the Driving Standards Agency since theory tests began in 1996. 

From September 2008 new legislation will require drivers with vocational licences (PCV D or D1 categories obtained by a separate test) to undertake additional regular training and be required to undertake and pass an additional Driver CPC module containing case scenarios before you’re even allowed to take practical driving lessons in a minibus in order to keep their vocational licences valid. This training is to ensure that all bus and coach drivers understand their responsibilities and keep up to date with new laws and regulations.

The PCV minibus practical driving test lasts 90 minutes . During the driving test the examiner will give you directions which you should follow. Test routes are designed to be as uniform as possible and will include a range of typical road and traffic conditions. More information is available on the Transport Office website.


What are the rules on drivers’ hours for minibuses?
 Further information on both the EU and Domestic Drivers’ Hours Rules is published by VOSA in (PSV 375) obtainable as above.  
A vehicle which is being used on a Section 19 permit is still a public service vehicle and is subject to domestic drivers’ hours rules when a person is driving in the course of his/her employment. Therefore if payment to the driver has taken place (unless it is out of pocket expenses) then domestic drivers’ hours rules apply.
Domestic drivers’ hours rules do not apply for the private use of a minibus or when permit vehicles are driven by volunteer (i.e. unpaid) drivers.
Obviously if a vehicle is being used as a PSV on a Regular Service (local/ non local) then the relevant domestic drivers’ hours rules apply (or in the case of a route exceeding 50 km, EU Hours’ Rules).
For PSV non-regular services when a minibus is being used for a non-regular national service, then domestic rules apply. For international services then the EU rules apply.
If a minibus is being used for international journeys (including private use) then EU drivers’ hours rules apply.

Minibus permits
Minibus and Community Bus Permits (Section 19 permits) are issued to organisations concerned with education, social welfare or other activities of benefit to the community. They allow certain organisations, including schools, to make a charge without having to comply with the full public service vehicle operator requirements and without the need for the driver to have a PCV (Category D1 or D) entitlement.

Certain organisations can apply for a Minibus Permit, (Section 19 -Transport Act 1985) for vehicles that can carry between nine and sixteen passengers. The Permit allows organistations like volunteer groups concerned with education, religion, social welfare, recreations and other activities that are beneficial to the community to make a charge without having to comply with the full passenger carrying vehicle entitlement (PCV) operator licensing requirements and without the need for their drivers to have PCV entitlement.

Many community transport organisations and charities now operate minibuses under a section 19 permit which, allows for the service provided to be for the organisations’ own members or for groups of people whom the organisation serves. Such organisations can charge or accept a form of remuneration for providing transport at a level to recover some or all of the costs of running the vehicle, and may even include an allowance for vehicle depreciation but the service must not be provided to members of the general public and the charges made must be on a non-profit basis. This non-profit requirement extends to cover any direct costs connected with a particular trip such as expenses incurred by volunteers, but not the wages of any staff involved.

A driver of a Section 19 permit minibus can either be paid or an unpaid volunteer.
It should be noted however, that volunteer minibus drivers who passed their car driving test after 1st January 1997 are restricted to drive minibuses which weigh no more that 3500kgs gross vehicle weight.

NB. Schools must hold a ‘Section 19 permit’ if minibus journeys are funded to any extent by outside sources such as parents or parent teacher associations. Schools and educational establishments who do not charge their pupils do not normally need a section 19 permit. See driving a school minibus.

Section 19 permits can be obtained from your local Traffic Area Network Office or visit the Vehicle and Operator Services Agency website: www.vosa.gov.uk.

Driving a school minibus abroad
The Section 19 permit arrangements apply only in the UK and you cannot take a permit minibus abroad, if it is used for hire or reward, unless you hold either PCV D1 or D entitlement. When a school minibus is taken abroad, a tachograph must be fitted and used throughout the journey , observing EC drivers’ hours regulations.


How can I tell if a minibus is being operated on a commercial operators licence (PCV) or under a section 19 permit?

Above the tax disk on the windscreen of the minibus should be another disk. If the minibus is being operated under a PCV licence the disk will be either blue or green. A white disk indicates that the minibus is being operated under a section 19 permit.



A Section 22 (Transport Act 1985) permit allows a minibus to be operated by bodies on a local bus service on a voluntary non-profit basis but only using unpaid volunteer drivers. Application needs to be made to the Traffic Commissioner for your area.

Section 19 and Section 22 permits are only applicable to the United Kingdom.

What are the rules on drivers’ hours for minibuses?
Further information on both the EU and Domestic Drivers’ Hours Rules is published by VOSA in (PSV 375) obtainable as above.

A vehicle which is being used on a Section 19 permit is still a public service vehicle and is subject to domestic drivers’ hours rules when a person is driving in the course of his/her employment. Therefore if payment to the driver has taken place (unless it is out of pocket expenses) then domestic drivers’ hours rules apply.

Domestic drivers’ hours rules do not apply for the private use of a minibus or when permit vehicles are driven by volunteer (i.e. unpaid) drivers.

Obviously if a vehicle is being used as a PSV on a Regular Service (local/ non local) then the relevant domestic drivers’ hours rules apply (or in the case of a route exceeding 50 km, EU Hours’ Rules).
For PSV non-regular services when a minibus is being used for a non-regular national service, then domestic rules apply. For international services then the EU rules apply.

If a minibus is being used for international journeys (including private use) then EU drivers’ hours rules apply.
This Guide is only intended for general help; it is not a legal document. Therefore you should seek your own legal advice if you have any doubts with these issues.


See also Renault Trafic LL30 9 Seat LWB, Ford Custom Tourneo Titanium 9 Seat, Lightweight minibuses for car licences


This Guide is only intended for general help; it is not a legal document. Therefore you should seek your own legal advice if you have any doubts with these issues.

TAXI LEAKS EXTRA BIT : Article Two

https://andersonshelter.blogspot.com/2019/10/what-are-tfl-waiting-for-why-did-uber.html?m=1

Taxi Ranks
http://content.tfl.gov.uk/taxi-drivers-abstract-of-laws.pdf

40. Appointment of and Regulations for taxi ranks (London Hackney Carriages Act of 1850 s4) TfL may appoint taxi ranks and make regulations as to the limits of the ranks, the number of taxis to be allowed to ply for hire there, the time during which they may ply for hire and also for enforcing order at the ranks, and removing any person unnecessarily loitering there.

It is TfL/T&PH (Gary Snewing – Rank & Infrastructure Manager) who appoints the ranks, therefore, it is their responsibility for enforcement and not down to the local councils.


Yours Sincerely


Les Hoath (Chairman)
London Suburban Taxi-drivers’ Coalition

Uber’s UK VAT liability confirmed

Earlier this week Uber London Ltd filed its full accounts up until December 2018 at Companies House. 

The big news wasn’t that the division made a relatively meagre profit of £5.1m. (The profit is hardly indicative of anything due to the group’s structural complexity.)

It was Note 13 which recounted the following about Uber London’s contingent liabilities: 

The most newsworthy part was arguably this one: “the Uber Group is involved in an ongoing dialog with HMRC, which is seeking to classify the Uber Group as a transportation provider. Being classified as a transportation provider would result in a VAT (20%) on Gross Bookings or on the service fee that the Company charges Drivers, both retroactively and prospectively.”

Uber London’s accounts do not provide any indication of the total sum being recorded as a contingent liability at Uber London’s parent, the Uber Group.

But various sources tell us the bill could be as large as £1bn, or more. These are not small sums.

But the statement is striking for other reasons too.

First, Uber says it’s in an “ongoing dialog” with HMRC which hints at a negotiation taking place to potentially lower Uber’s liability. But that’s a big no no for HMRC. The tax authorities are not supposed to cut deals with corporations on unpaid back taxes, not least because of the scale of public outrage associated with legacy sweetheart deals, which prompted far-ranging internal policy reviews. 

HMRC told FT Alphaville that on an ongoing basis it investigates about half of the UK’s large businesses at any one time. As part of that process companies are man-marked with HMRC officers whose job it is to speak to the financial people at the organisation. So it could be that Uber is treating this sort of relationship as a dialogue. 

But a source tells Alphaville the view at Uber seems to be that the company sees itself as in negotiations with HMRC, with a view to settling the case before the all-important outcome of its UK Supreme Court appeal regarding its employer status is determined.

The other issue is the nature of the exposure and HMRC’s overall responsibility to capture its full extent.

It’s worth noting Alphaville first alerted readers to Uber’s potential VAT tax exposure in December 2016. At that time it was well known that the tax exposure in question was contingent on Uber successfully defending a tribunal case regarding the employment status of the company’s drivers. A loss would see the company’s drivers classified as workers not contractors, which would incur costly employer liabilities upon Uber, among them a VAT liability.

This is a big deal because the threshold for UK businesses having to pay VAT at the time was a turnover of more than £81K (it’s now £85k).

Since Uber drivers mostly earn much less than that, most do not incur VAT liabilities. If Uber is deemed an employer, however, those revenues would then be deemed Uber’s rather than drivers’ — more than surpassing the VAT threshold and thus exposing the company to potentially huge VAT liabilities from then on.

But the ruling would also reveal how much tax revenue the state will have missed out on over the years because of Uber’s potentially incorrect insistence it is not an employer.

The problem for HMRC is that there is a statute of limitation that ensures the tax authority cannot claim unpaid sums beyond the past four years.

This poses a bit of a quandary for the revenue services. What is a tax authority to do if it suspects a company may be hugely underpaying tax liabilities because of an incorrect employer classification, but cannot claim those sums until a final court ruling about that classification is determined.

One course of action according to Jolyon Maugham QC, who fronts the Good Law project — a non-profit that seeks to support progressive law change in a way that reduces public distrust of the establishment — is for the tax authority to engage in something called a protective assessment as soon as possible. This would allow HMRC to protect its position by flagging that an effective inquiry has begun, in turn allowing it to seek back-taxes from four years before that point even as more time passes.

In Mr Maugham’s opinion it would be a failure of governance at HMRC for the authority not to have issued such an assessment as soon as it was made aware of the issues at stake, irrespective of the pending nature of the all important employer status appeal.

When Mr Maugham made this view known to HMRC back in March in a letter before action, however, the authority’s view seemed to be that it would need to wait until the case was determined to do so. And so, in bid to get to the bottom of the legalities of the situation, the Good Law Project announced on May 29 of this year that it would be suing HMRC via judicial review for failing “to stem losses due to Uber’s tax dodging.” 

It is Mr Maugham’s contention that up to £1.1bn of tax is at stake. You can read Mr Maugham’s witness statement, which offers more details on how that figure is arrived at, here. 

But there’s another issue in play. As an interested party in the action, Uber has a right to legally represent its interests in the case if it wishes. One of those interests is that the case does not inadvertently expose its private tax affairs to the general public given that in the UK, all tax affairs are deemed private and confidential, including the issue of whether protective assessments have been initiated.

Uber has made it known to Mr Maugham that it will be engaging in the case to ensure any privileged information revealed by the process stays private and confidential and subject to an order that it is “protected from onward disclosure to third parties”. 

A hearing on the matter is due on November 6 at the High Court.

Of course, the fact that Uber London since filed a company account noting that a dialogue with HMRC over a VAT liability is ongoing implies some sort of protective assessment may already have been initiated. So to some extent the cat is already out of the bag.

Commenting on the case, Mr. Maugham told FT Alphaville:

It has taken three years for us to force HMRC to collect tax from Uber. Many hundreds of millions of pounds will have been lost because of its inaction. We will now turn our attention to ensuring that other big transport suppliers — such as Addison Lee — comply with the law. And to those, like Amazon, operating arrangements that seem to us to be similar in character.

In response Uber’s spokeswoman said: 

We can't comment on any discussions with HMRC but we will always fulfil the tax obligations in any country in which we operate.

Finally, HMRC told Alphaville:

We don’t comment on identifiable businesses. HMRC will always make sure that every business, no matter its size, pays all the taxes due under UK law and we don’t settle for less.

One thing’s for sure. It’s a tax case that could have a huge bearing on Uber’s profit-and-loss at some point, with equally important implications for Uber’s operations in Europe, which also bear similar VAT exposure.

High Court Quashes Wakefield Taxi Fees

Friday, 7 December, 2018

The High Court has quashed the licensing fees charged for private hire vehicle and Hackney carriage licences set by Wakefield City Council, following a claim for judicial review by the Wakefield District Private Hire and Hackney Association.
 
His Honour Judge Saffman, sitting as a deputy judge of the High Court, held that the fees charged by Wakefield were unlawful. In particular, the Council had wrongly interpreted section 70 of the Local Government (Miscellaneous Provisions) Act 1976 and had erroneously charged the costs of enforcement against drivers (for speeding, bad parking, dressing inappropriately and a miscellany of uncivil or illegal conduct) to the control and supervision of vehicles. Wakefield’s case had been that the costs were properly accounted for against vehicles because the errant drivers were driving vehicles. The learned judge described that as ‘stretching beyond breaking point’ the language of the section.
 
The case is of wider importance as it dispels any suggestion that there is a general principle of law that licensing regimes should be self-financing. The judge made it clear that a local authority’s entitlement to recover from the licence fee the costs of administering a licensing regime is governed by the words of the empowering statute. Where Parliament has awarded local authorities a broad discretion (e.g. “such fee as they think reasonable”) the courts have upheld policies of full cost recovery on the sole ground that the policies, being reasonable, are intra vires; but where, as in s 70 LGMPA 1976, the power to charge a fee is circumscribed by reference to specific heads of recovery, recovery is restricted to those specified heads. Licensing authorities are creatures of statute, and have no powers beyond those which statute has given them.
 
In the course of the High Court action it became apparent that Wakefield Council has overcharged private hire vehicle licence fees by an aggregate sum in excess of £1million, which will form the subject of a claim for restitution.
 
Gerald Gouriet QC and Charles Streeten acted for the successful claimant, with the assistance of A2Z licensing

TAXI LEAKS EXTRA BIT :

As the article states, the greater legal significance of the judgment was to recognise that there is no general principle of law that requires licensing regimes to be self-financing, but for members of the Wakefield trade, it might be the prospect of being able to bring a restitution claim for in excess of £1 million that was the most significant thing to come out of the case, which was heard by the High Court in Leeds last Wednesday (5 December 2018).

For the sake of completeness, I should advise that the Council was refused permission to appeal to the Court of Appeal, but does, of course, have 21 days in which to renew its application directly to the Court of Appeal.

David B Wilson

a2z Licensing