Fit and proper person policy

Fit and proper person policy for Taxi and Private Hire Licensing.

Background information

The role of the taxi or private hire driver has been identified nationally as one which can present significant safeguarding threats if strong assessment measures are not in place at the point of a licence application.

The fit and proper person test is particularly relevant as the licensing authority must be mindful of inappropriate persons applying for licences who may misuse their position of trust and present a potential safeguarding threat.

With this in mind, it is necessary to increase the safeguarding measures to ensure an applicant is a ‘fit and proper’ person when making a licensing decision. The policy must also be proportionate in balancing the statutory requirement and Human Rights legislation.

The relevant part of the Local Government (Miscellaneous Provisions) Act 1976, is:

How it may affect you

Here at the Taxi and Private Hire Licensing Section of Leeds City Council, we receive applications for private hire driver and Hackney carriage driver licences from a range of nationalities.

Applications from long standing UK nationals prevent no significant difficulties in determining the ‘fit and proper’ person assessment in respect of convictions, cautions or other relevant background information supplied at the discretion of the Police. A lifelong UK citizen will have a visible DBS history unless they have lived outside of the country.

If you have only recently been granted leave to remain in the UK or leave to enter, obtaining the same sort of credible information can be difficult and even more difficult to verify, especially when it originates from a non- EU country.

A non UK but EU citizen may have some criminal records history in their own EU country but there are significant differences between EU member states where there are very rudimentary systems as opposed to established EU member states who may have an equivalent of the Disclosure and Barring Service, just operating in a different way.

For example, other states may have a different form of the Rehabilitation of Offenders Act, which may discount convictions relevant to the role of a licensed driver at a much earlier stage.

Sentencing policy in other countries may also be somewhat different with potential to cause some conflict with the council’s convictions criteria policy which sets assessments by the seriousness of offence.

Finally, in the UK Chief Constables can disclose to Licensing Authorities information they think relevant to the role being applied for. For example:

1: Mr A has been arrested twice whilst in a vehicle that was being used in the trafficking of drugs.

2: Mr B was found to have formed a relationship with a teenage boy and girl and taken them back to a bedsit flat rented by a group of private hire drivers where they claimed they were indecently assaulted when they slept. No court proceedings were taken by the Police in respect of these matters.

Leeds City Council can, and does, consider such ‘other relevant information’. We do question applicants about it and we may also seek further information from the Police.

We are able to do this because the processes in which applications are determined are a civil process and decisions are based on the balance of probabilities. This enables Local Authorities to have a much tighter net to safeguard the public.

The majority of such information may not be disclosed by non UK authorities because it is not registered as a conviction. This places the council at risk in conducting assessments on non UK applicants.

If you don’t have a 5 year UK DBS history

A five year UK DBS history is a good milestone but this may not always be achievable by all applicants and a blanket policy stipulating such a requirement may be deemed discriminatory. Even with a 5 year history there may still be the need to obtain a longer time period to make an appropriate assessment.

The difficulties for some non EU citizens are increased when they are from countries where a criminal record database is not held. In these circumstances, information may be sought from the local police station. Such documents usually appear under the heading of ‘police clearance certificate’ or ‘character certificate’ or similar titles.

Some of the potential solutions to obtaining character information can leave the council exposed if we were to rely on the integrity of the source of the documentation; not being able to validate or interrogate that information or trying to prove the authenticity of the document.

There is even greater difficulty in the case of asylum seekers or refugees who have been granted leave to remain in the UK or leave to enter, who would fear reprisals against their family remaining in that country. A feature amongst some asylum seekers is that they destroy all of their identity documents so they cannot be returned to a particular country. It is issues around such circumstances where it is almost impossible for a Local Authority to obtain any background information. 

All of these issues exist across West Yorkshire.

The policy

The statutory test to demonstrate that somebody is a ‘fit and proper’ person should be the determining factor and the responsibility for that rests with the applicant.

The following are requirements at the point of application:

Lifetime UK citizens

• UK enhanced DBS check
• Additional information as required at the discretion of the council
  

UK citizens born outside of UK

• UK enhanced DBS check
• Additional information as required at the discretion of the council. This may vary depending on the length of time the applicant has been resident in the UK
• The non-UK Disclosure must be in English and interpreted by someone on Her Majesty’s Courts Interpretation Services list
• The council reserves the right to require a statutory declaration from a UK solicitor in a format prescribed by the council
• Applicants have to conduct such transactions through the relevant national embassy or in accordance with UK DBS guidance

Non UK – EU residents

• UK enhanced DBS check
• DBS certificate from home country with all information submitted via the licensing office to enable checking of all identity information (this corresponds with the UK DBS procedure)
  
• 2 character references from a UK resident of a professional background who has known the applicant for more than 2 years
• The non-UK Disclosure must be in English and interpreted by someone on Her Majesty’s Courts Interpretation Services list
  
• The council reserves the right to require a statutory declaration from a UK solicitor in a format prescribed by the council
• Applicants have to conduct such transactions through the relevant national embassy or in accordance with UK DBS guidance

Non UK – EU applicants living in multiple countries

In addition to the above requirements the council may require a non-UK DBS disclosure from any country they have lived in for 3 months or more.

Non EU countries

It is not always possible to obtain a criminal records certificate from countries that do not have functioning criminal record regimes or refuse to provide these to anyone other than their own citizens. In the absence of available checks, we would expect applicants to obtain as much information as possible in the form of references or other evidence before we decide whether or not to grant a licence.

The council has strong responsibilities for safeguarding and protecting children from Child Sexual Exploitation and will make its final decision in balancing the statutory ‘fit and proper’ person assessment and the information available to them about the applicant and how that information can be validated.

Police character certificates’ or equivalent should be obtained via the Embassy of a country they have lived in for a period longer than 3 months, or as described in the earlier process under the heading “UK citizens born outside of UK”.

Similarly, all of the information provided to the Embassy would need to be submitted via the Taxi and Private Hire Licensing Section in the format prescribed by the relevant Embassy or agency working on behalf of the Embassy.

Statutory declarations

The purpose of requiring a statutory declaration is to enable the council to demonstrate that it has taken significant steps to ensure, as far as is practicable, the credibility of information supplied to it within a legal process. It should also demonstrate to the applicant the significant seriousness of not telling the truth or providing misleading information during an application process to obtain a licence from the council.

Where we require a statutory declaration it must be obtained from a practising UK solicitor or Commissioner for Oaths.

The preferred format of the Statutory Declaration is set out at the back of this document and when required a copy will be given to the applicant. It is important that the solicitor or Commissioner for Oaths follows exactly the format of the declaration. Any declarations that are considered to be deficient in any material detail will not be accepted.

Any costs incurred are the responsibility of the applicant and the original document will be retained by the council.

References

The council may also require references from the applicant in support of any part of the application process.

It is important that references are honest accounts and a professional assessment of the applicant in the context of the role they are applying for. The author of the reference must understand the concerns of the council in respect of public safety, safeguarding and the prevention of Child Sexual Exploitation.

The reference must demonstrate that the author has full knowledge of the applicant’s background and criminal history (if applicable) so they can consider their own position prior to supplying a professional reference.

References which are vague, non-specific to the context of the role, supplied by relatives or someone who cannot demonstrate detailed examples of the applicant’s character will not be considered. The author must have known the applicant for a minimum of 2 years.

Please note: Leeds City Council has a policy which does not favour references being supplied by Councillors, Members of Parliament or Officers of the council. Fees and costs incurred.

Any fees would be payable by the applicant in addition to the standard application fees.

Timescales

All references, statutory declarations or convictions history in any format must be less than 3 months old from the date supplied by the disclosing authority.