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High Court clarify “additional charge” definition

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High Court clarify “additional charge” definition 26th February 2019

The High Court has clarified when an “additional charge” becomes relevant in the context of the Equality Act.

In the case a London taxi driver switched his taximeter on prior to loading a passenger in a wheelchair. The disabled passenger noticed the taximeter on and confronted the driver. The passenger eventually decided not to take the taxi driven by Mr McNutt, the appellant, and therefore she was never charged a fare.

Following a complaint and investigation by TfL, Mr McNutt was prosecuted and found guilty of an offence under s165 of the Equality Act.

Mr McNutt appealed by way of case stated posing the following questions for the opinion of the High Court:

(1) Did the Appellant make an additional charge for carrying a wheelchair user, Emma Vogelman, on 4 October 2017?

(2) Did the magistrates err in law by convicting the Defendant of making an additional charge for carrying a wheelchair user, contrary to s 165(7) Equality Act 2010?

Among others, TfL argued that “…the Oxford English Dictionary definition of the word 'charge' as including 'to subject or make liable (a person, estate, etc) to a pecuniary obligation or liability' and says that this means that the word as used in s 165(4) covers the two posed scenarios...” saying that “…to accept the Appellant's argument would mean that, for example, taxi drivers would be able to avoid carrying disabled passengers by giving an indication at the point of hiring that there would be a significant surcharge. That would discourage most disabled passengers from travelling with that driver. The driver would not, however, be liable for a breach of the duty in s 165(4)(b) because he would never reach the stage of demanding payment. The driver would then never have to carry a passenger in a wheelchair but would not be liable for the offence in s 165(7).”

Mr Justice Julian Knowles agreed with TfL argument saying: “…in my judgment the words 'make an additional charge' in s 165(4)(b) mean to impose an additional financial liability or commitment on a disabled wheelchair user as compared with an able bodied passenger, and such a liability or commitment is imposed no later than the point when a London taxi driver switches on his meter before such a person and their wheelchair have boarded the taxi.

“In my judgment such an indication also amounts to a financial liability or commitment, and thus a charge within s 165(4)(b), albeit of a contingent kind. The reason is the one I have already given: to construe 'charge' as excluding inflated fare indications would enable drivers deliberately to discourage disabled passengers from travelling with them, and thus to avoid their duty under s 165 to carry such passengers, and thus defeat the whole purpose of that section.”

Whilst this case involved a London taxi driver, Mr Justice Knowles made it clear that the same principles should apply elsewhere too and continued to provide further guidance on the matter.

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