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WAS TFL RUNNING SCARED WHEN IT DECIDED NOT TO REVOKE UBER’S PRIVATE HIRE LICENCE?

WHAT IS THE CURRENT SITUATION?  Transport for London (TfL) told Uber on 22 September last year that the licensing authority was not going to renew the booking despatch app’s private hire operator’s licence when it expired on 30 September 2017.

A spokesman for TfL said:

TfL must be satisfied that an operator is fit and proper to hold a licence. It has concluded that Uber London Limited is not fit and proper to hold a private hire operator licence. TfL considers that Uber’s approach and conduct demonstrate a lack of corporate responsibility in relation to a number of issues which have potential safety and security implications.

The reaction of the world and its wife to TfL’s decision not to renew Uber’s licence was one of shock but it actually had very little real effect.

TfL gave Uber a week to appeal against its refusal-to-renew decision, which it then did, and meant the American cab despatch app could carry on as before – even though it was not fit and proper to operate – until the legal battle has finished its merry way through the courts of England and possibly Europe.

So, Uber may be on the minicab equivalent of the ‘naughty step’, but as London mayor Sadiq Khan stated during Mayor’s Question Time, “My understanding is that this could go on for years.”

SHOULD TFL HAVE REVOKED UBER’S LICENCE IMMEDIATELY?  Far from making what was seen at the time as a bold and courageous decision, TfL has in fact taken the easy option and passed the buck to the English High Court to do the work it dare not do itself.

TfL refused to renew Uber’s private hire operating licence but the licensing authority had the ammunition and authority to revoke its licence immediately.

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Uber’s London boss Tom Elvidge

PHC has seen a leaked copy of the 21-page letter that TfL’s taxi and private hire manager Helen Chapman sent to Tom Elvidge, Uber’s general manager in London, explaining why TfL would not renew its licence and it is clear that the licensing authority could have revoked Uber’s licence immediately.

UBER DRIVERS ACCEPT THE BOOKING, NOT UBER  In its refusal-to-renew letter to Mr Elvidge, TfL said that Uber had failed to obey one of the fundamental regulations of the Private Hire Vehicles (London) Act 1998.

Section (1) of the Act defines a licensed private hire operator as, “A person who makes a provision for the invitation or acceptance of, or who accepts, private hire bookings.”

But TfL pointed out that Uber had misled the authority by stating that the app, as a licensed private hire operator, accepted bookings from customers before allocating the jobs to drivers.

Uber driver

Uber claimed it received bookings first, not its drivers

In a letter to TfL, dated 17 March 2014, Uber described the data flow process of its booking procedure to the licensing authority.

  • Client requests a vehicle using the Uber app installed on a smart phone. The client’s smartphone forwards the client’s pick-up location to Uber London Limited’s despatch server
  • Client request is accepted by despatch server (PHC emphasis)
  • The despatch server selects an available licensed PHV driver and forwards details of client request to a licensed PHV driver

In conclusion, Uber stated: “Uber London Ltd is not sub-contracting bookings, but is arranging for drivers to discharge a booking already accepted by Uber London Ltd.”

This explanation turned out to be false. Statements made by Uber in court cases around the world and to a London employment tribunal rang alarm bells at TfL who appointed Deloitte to carry out a review of Uber’s IT system structure.

Deloitte’s conclusion? “Contrary to Uber’s explantation of the booking process to TfL in 2004, it is clear that Uber’s system only ‘accepts’ the booking after a driver has ‘accepted’ the trip.

“Uber’s prior assertion that its despatch servers arrange for drivers to discharge a booking already accepted by Uber and that receipt and acceptance by Uber of the passenger’s booking takes place at the same time as the relevant driver is notified of the booking, were false.”

Uber came under fire from inspector Billany

REPORTING SERIOUS CRIME  In her refusal-letter to Uber, TfL’s taxi and private hire manager Helen Chapman highlighted a letter from inspector Neil Billany to the licensing authority in April 2017 which was called, ‘Concerns with Uber not reporting serious crimes’.

Billany detailed how Uber failed to report an alleged assault by one of its drivers against a female passenger in January 2017 and that the same driver was accused of assaulting another woman four months later.

The inspector concluded that Uber did not report serious matters which might affect its reputation and: “Allows situations to develop that affect the security and safety of the public”.

In TfL’s licence refusal letter to Uber, Ms Chapman concluded: “The handling of the matters raised in the letter from the police gives concern to TfL about the importance which Uber attaches to the safety of its passengers.”

DRIVER MEDICAL CHECKS  Uber confirmed that between 22 August 2016 and 23 September 2016 that it had used the online Push Doctor GP service to carry out medical checks on driver applicants.

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TfL taxi & private hire manager Helen Chapman

But, as Helen Chapman pointed out: “TfL does not accept medical reports received from driver applicants that have been issued by Push Doctor.

“TfL considers it obvious that a comprehensive medical examination of the type required for a PHV licence applicant must be conducted in person and encouraging drivers to undergo medical assessments, which are clearly and obviously unsatisfactory, demonstrates a lack of regard to public safety and security.”

CRIMINAL RECORD CHECKS  TfL rules state that private hire driver applicants must obtain an enhanced criminal records certificate (ECRC) from the Disclosure & Barring Service (DBS) and until recently, allowed third party providers, including Uber’s provider Onfido.

But, as pointed out in TfL’s licence refusal letter to Uber: “During the course of correspondence between TfL and Onfido, Uber confirmed that its identification checks of drivers were undertaken by its own staff and this raised concerns for TfL as to the reliance that it could place on the ECRCs obtained.

Criminal-background-check“TfL considers that it is a vital part of the ECRC process, that in order to ensure the accuracy and integrity of the results, identification checks should be carried out independently. A prospective employer (Uber) cannot provide an independent checking service as it compromises the reliance upon which TfL as regulators can place on the results.

“Uber’s approach in arranging for its staff to undertake such checks was unacceptable and demonstrates a lack of regard to the safety and security of passengers.”

COULD TFL HAVE STRIPPED UBER OF ITS OPERATOR’S LICENCE?  Absolutely. The Private Hire Vehicles (London) Act 1998 gives TfL the power to revoke the licence of a private hire operator immediately if it deems it appropriate.

Paragraph (1) of Section 26 states that an operator can carry on running their business until the appeal process has finished, BUT, Paragraph (2) qualifies this by stating this does not apply: “In relation to a decision to suspend, vary or revoke a licence if the notice of suspension, variation or revocation directs that, in the interests of public safety, the decision is to have immediate effect.”

TfL quite clearly has the power to stop a London private hire company operating, if it is in the, “interests of public safety,” to do so.

And as detailed above, TfL spelt out quite clearly in its refusal-to-renew letter to Uber, that there were at least four occasions when the company had acted against the safety of its passengers and the travelling public.

SO WHY HAS TFL ALLOWED UBER TO CONTINUE OPERATING?  Who knows, as the licensing authority is quick to act when it wants to.

For example, Taxify launched a private hire e-hail service at the start of September last year and just three days later was forced, under pressure from TfL, to stop operating.

TAXIFY-SMARTPHONE-APP

Taxify did not last long in London

Taxify had bought a licensed PHV operator and appeared to be legitimate. But, TfL did not want another Uber-type situation developing and took action immediately.

Uber itself though is very different. TfL granted it a private hire operator’s licence back in 2012, when in hindsight it shouldn’t have, and has now backed itself into a corner.

Over the years there have been numerous questions raised over the legality of Uber’s booking system, it’s operating centre and the criminal and medical record checks of its drivers, but they appear to have been overlooked or brushed under the carpet.

Unfortunately for TfL, these chickens are now well and truly coming home to roost. Not least because Uber has been accused of many offences, from allegedly allowing its vehicles to ply for hire illegally, to letting a minority of its medically unfit drivers with dodgy criminal record checks to buy vehicles on morally-dubious hire purchase agreements and sexually assault their passengers.

But, the licensing authority could face a multi-million pound lawsuit for lost earnings and damaged reputation etc if it stripped Uber of its private hire licence with immediate effect, because it has seemingly allowed the company to operate for half a decade with impunity.

TfL & Uber are no strangers to the High Court

TfL’s only option has been to toss the ball to the High Court and hope that a panel of judges will take the decision that it probably should have taken itself many years ago.

In the meantime, TfL had better keeps its fingers crossed and hope that nothing truly terrible happens in an Uber vehicle between now and any final judgement.

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PHC Magazine

PHC Magazine