GMB Brighton & Hove Section October 3 2017

Uber Brighton & Hove Operators Licence Renewal 2017 - Full PDF document available here

Click on links

Part 1: Issues raised & Objection to the renewal of the 2017 Uber Brighton & Hove Operators Licence

Part 2: Questions for Brighton & Hove Council

Part 3: Questions to be submitted to Uber


Part 4: Uber Hailing App (two documents)
Martin Seymour
Hackney Carriage Office
Brighton & Hove City Council




September 20 2017


Dear Martin

Further to your email of September 1 2017 I am now supplying a comprehensive response.

For clarity I have provided the details of that email.



MS: Thank you for providing the attached flowchart showing the differences between a booking app and a hailing app.

So that we can take this matter further please can you let the me know what experts devised the chart and what their technical expertise / qualifications are to demonstrate the workings of this type of technology.


AP: Both Flow Charts were constructed by me with an adaption of the ‘Hailing App’ provided by Lee Ward* (ALPHA) Sheffield

I have been in the trade for over 35 years and have been involved in data dispatch since the late 90’s with one of biggest suppliers of taxi Data Dispatch systems.

My role with Streamline Taxis was acting as one of two UK beta testing sites for the Auriga  (Trapeze) Data Dispatch system with an ever evolving five generations of software and hardware with such beta testing that included construction and deconstruction of systems reporting and annalistic reviews.

My most recent involvement has been with the Streamline  (Booking) App.


MS:
Can you also explain why this is relevant. We note that  you suggest we ask which of the apps is closest to the system they utilise.  Legal advice has already been sought as to the Uber app and has been consistent both externally and internally that the Uber process does not reveal any features which leads to us to conclude that Uber is not operating as an operator.


AP:  With respect if you would like to read my email to Councillor Lee wares (copied to the council) again you will find that I have not made any reference to Uber. My correspondence only refers to the two types of taxi/ph App systems being a ‘Booking App’ and a ‘Hailing App’.

However....I am not privileged to the benefit of being informed as to exactly what legal advice has been sought or indeed what information that Uber has supplied to the council  or more importantly what technical expertise the council has in Data Dispatch and App systems.

Q1: Could you provide full details of the council’s expertise/experience of Data Dispatch/App systems

Q2:  Could you provide full details of your correspondence with Uber to me so I can properly analyze the information?

Nevertheless whilst it is stated that “Legal advice had already been sought.....”  this gives the impression that the council has not revisited this matter with Uber and is relying on archive information.

Q3: Could you provide me with the date as to when the council’s Data Dispatch/App system expert communicated with UBL?


MS
: Introducing other applications does not seem to assist. By analogy we could ask Apple phones so say whether their operating system is closer to Samsung or Blackberry. They may elect one because it has some similarity but the reality is that they are fundamentally  very different. Another analogy would to be to ask someone what is closer to the UK America or France? The answer is geographically France but linguistically America and arguably culturally the answer is ambiguous. So as you can see you are asking for a comparison for something which may well not be like for like and so the reply would not assist us.

AP: With respect I fail to see what this has to do with anything and I can only describe this paragraph and ‘gobbledegook’ because I have found this argument very difficult to relate to the subject matter.

I have to make it absolutely clear that there are two  taxi/ph App systems which work very differently.  If the council cannot accept that this is the case then the council needs to refer this matter to an independent third-party who is an expert on Data Dispatch and App based systems.

MS: Also how is this relevant in relation to fit and proper. This is a renewal of licence which is coming up and the test is not what app is relevant ( as above there is nothing to dissuade the lawyers at this time that they are not an operator). What the closest comparator commercially available app does not assist us to identify what issues there are with being fit and proper.

AP:  Again if you re-read my email to Councillor Lee Wares I have not made any mention of “Fit and proper” and in any case...as we all know ...there is no legal definition of what “Fit and proper” actually is.

As technology moves on there is now a paramount need for the council to determine what Data Dispatch/ App systems each Operator utilises so that when the council licenses an Operator it can ensure the legality of such systems.

Q4: Would the council agree with this as being an important enough issue to instigate such action?

The council issues a very comprehensive document called the ‘Blue Book’ with  ‘Conditions of Licensing’ for drivers, vehicles and Operators and now is the time to include Conditions of Data Dispatch/App Systems.

With the impending review of the current Blue Book V4 we will be looking into making proposals to cover this.

Q5: Would the council agree with this as being an important enough issue to include ‘Conditions of Data Dispatch/App Systems’ in the ‘Blue Book’ to maintain the often quoted ‘High standards’ that the council imposes and expects from the trade? Such recent Conditions of Licensing for the CCTV system used in B&H licensed vehicles have been set so why not extend this to the Data Dispatch/App systems that Operators can use?


Booking APP
A ‘Booking App’ functions by the customer in-putting their location which is either picked up via GPS tracking or via manual input.

The customer then inputs data for their destination (if required) and then requests the booking for the journey.

The booking then arrives at the company’s Data Dispatch/Booking System where it is recorded FIRST and dispatched to the nearest available and most suitable car SECOND. The booking may indeed wait on the Data Dispatch system for a few minutes. There is no interaction between the customer and the driver until the driver receives the job.

Such a ‘Booking App’ is used in conjunction with the Data Dispatch systems  with companies such as Streamline.. Radio Cabs and City Cabs. I have communicated with these companies and they are very happy for the council to inspect their systems.

Q6: Would the council agree with implementing such an inspection of all B&H Licensed Operators  to verify that such systems conform to legal operations?

A fundamental importance is that such companies also have ‘Web Booking’ systems running alongside their App and telephone systems and telephone IVR (Interactive Voice Recognition)

A ‘Web Booking’ system can be used by either someone connecting to the internet or this can be a remote ‘Kiosk Web Booker’

Hailing APP
A Hailing System allows for the customer to see the location of a vehicle and ‘Hail’ it directly without the need to actually place a booking.

The interaction is between the customer and the driver FIRST and only recorded as a booking SECONDLY. Effectively back-filled. In fact there is no real need for a hackney carriage to record any ‘Hailed’ job.

A ‘Hailing App’ can also have the facility to make a ‘Pre-Booking’ but the Uber App has absolutely no facility to make a ‘Pre-Booking’ in the normal sense (which will be referred to further on) in which an Operator would pre-book a job on a Data Dispatch system and undertake a legal contract with the customer to service that pre-booking.

For example the ‘MyTaxi’  App that is mainly used in London by ‘Black Cabs’ is a hackney carriage only ‘Hailing App’ no private hire cars are permitted to use this App.

As we know a hackney carriage does not need an Operator’s Licence to work under unlike a private hire vehicle.

If needed I can provide clear imaging examples of the interaction of the Customer and the Driver for the process of ‘Hailing’ following the recent joint exercise with the ‘London Cab Driver Association’ and their visit to Brighton & Hove where I was asked to participate in conducting a series of ‘Hailing Bookings’ tests that connected myself directly with the driver in the First instance.


Private Hire Conditions (Blue Book)
What the council seems to have either forgotten or by-passed is that it is illegal for any private hire driver to accept a job which is not pre-booked and by pre-booked this means a booking that has been processed and recorded by a data system in the FIRST instance.


The Blue Book clearly states

Part B

6. Advice to Drivers

Do not accept immediate hiring for private hire.

28. Touting and Soliciting

The driver shall not, whilst driving or in charge of a licensed vehicle;
28.1 tout or solicit any person to hire, or be carried for hire in any licensed vehicle.
28.2 cause or procure any other person to tout or solicit any person to hire or be carried for hire in any licensed vehicle.
28.3 ply for hire, appear to be plying for hire, offer a vehicle for immediate hire in any private hire vehicle
28.4   park a private hire vehicle on any hackney carriage stand for any reason during the operational times of such a stand
28.5    accept for the immediate hire of a private hire vehicle while the driver or that vehicle is on
            a road or other public place, except where such offer is first communicated by the
            operator to the driver by telephone or by apparatus for wireless telegraphy fitted to that 
            vehicle and the driver has no knowledge of such offer prior to such communication

These conditions of licensing are there for a reason otherwise they would not be needed.

As Reading Council has shown....it is fundamentally clear that the Uber ‘Hailing App’ displays the location of a private hire vehicle for the customer to ‘virtually’ Hail in contradiction in respect of:
28.3 ply for hire, appear to be plying for hire, offer a vehicle for immediate hire in any private hire vehicle

In addition because a ‘Hailing App’  connects the customer directly with the driver then this breaches 28.5 where it clearly states that the ‘hiring’: ...”where such offer is first communicated by the operator..... and the driver has no knowledge of such offer prior to such communication”. In this respect the First instance is the interactive use of the App by the customer

28.5   accept for the immediate hire of a private hire vehicle while the driver or that vehicle is on a road or other public place, except where such offer is first communicated by the operator to the driver by telephone or by apparatus for wireless telegraphy fitted to that vehicle and the driver has no knowledge of such offer prior to such communication


There is effectively no difference between the customer flagging down or ‘Hailing’ a private hire car in the street and using a hand held device to locate a private hire vehicle on a screen (as in the case of the Uber App). This is exactly how Reading Council Enforcement tracked down TfL minicabs working on the Uber App in Reading.

It has to be said  that if any council cannot see that this is clearly the case then a council could even be accused of ‘Aiding and abetting’ when endorsing the use of a ‘Hailing App’ for the purpose of use for private hire vehicles.


The following has been adapted from an article written by Lee Ward* (ALPHA) Sheffield and included very important information with regards to Gateshead and Reading:

Canada
In July 2015 where Uber Canada Inc, Uber B.V. and Rasier Operations B.V.had been taken to court by the City of Toronto (Canada) because Uber stated that they did not require licensed drivers in Toronto due to them not being a Transportation Company.

The judge residing the case  stated that the Uber platform that can be downloaded world-wide and used in numerous countries was in fact a peer to peer platform and not a booking App because it simply matched the customer request with the nearest available driver and the driver accepted, therefore Uber did not require the equivalent of an Operator’s license or its drivers to be licensed because Uber did not accept the booking and therefore its service was not a Taxi or Limousine Service which would require licenses in that City..

In an earlier case in April 2015 again in Canada, where the City of Edmonton also took Uber Canada to court (found here) where in Section 9 it states (paraphrasing) that Uber Canada is nothing to do with Uber B.V. that is based in the Netherlands and that again, the customer is put in contact with the driver to accept the booking.

UK
In the UK, a recent Industrial Tribunal that involved Uber B.V., Uber London Limited and Uber Britannia Limited it was stated at Section 15 that ‘once a driver accepts, Uber London Limited confirms the booking to the passenger and allocates the trip to the driver’ which is as mentioned before back filling.

The witness statement by Jo Bertram  in this Tribunal case states at Section 45 (quoted Verbatim)

“A booking is not accepted   by ULL until a Driver has confirmed that they are available and willing to  take it.   Confirmation and acceptance then takes place by ULL almost simultaneously”

It further clarifies (although a little more carefully worded) at Section 60 (quoted verbatim) “if they do choose to take the trip, they will touch to confirm to ULL that they are available and willing to take the trip.   

Having done so, ULL will accept and confirm the booking to the Passenger on behalf of the Driver, and almost simultaneously and instantaneously allocate the trip to the Driver.”

On both counts, Jo Bertram who is the Regional General Manager for the UK, Ireland and Nordics states that ‘almost simultaneously’ the booking is recorded (back filled) by Uber.

This is always mentioned after an explanation of the driver accepting the booking and the words almost simultaneously simply means after and not before, regardless of the time between such actions.

Gateshead
Further information gained due to a FOI that Lee Ward (Sheffield)  sent to Gateshead Council since learning that Uber had walked away from an application that it made there, several questions have now been raised and left unanswered by Uber, these questions support the link between Uber, Uber BV, the driver and the customer.

The questions are in regards to the actual contractual terms that each party must agree to in order to use the Uber platform.

If Uber has no involvement in the contract between the customer and the driver of the vehicle, who accepts the booking?

If Uber accepts the booking, how does it have no involvement in the contract between the customer and the driver?

If Uber considers that the driver accepts the booking, does it accept that the driver must also hold a Private Hire Operator licence to accept bookings?  If this is the case, what steps will Uber take the ensure that all bookings are only given to licensed operators?

(Note - reference to ‘Uber’ is to Uber BV, being the company that customers and drivers enter into agreements with for use of its app platform.)

Further questions that were asked by Gateshead Council follow;

UBL was asked to clarify how the provisions in the contract for use of the Uber app by customers which purport to exclude Uber as a party to the contract between the customer and the driver could validly be interpreted as anything other than an unfair contract term.

What is the effect of the new contract that is created between the consumer and the driver?  Is it to the consumer's benefit? 

What are the provisions of the new contract, e.g. does the consumer have any written rights under the new contract? 

Are they provided with the name and address of the person / business with whom they are contracting and given details of rights and responsibilities to each party by the new contract?

Why does Uber do this?

Why no direct explanation was provided as to how the provision in the passenger contract excluding Uber as a party to the contract for the provision of transportation services booked through the Uber platform should not be deemed to be an unfair contract term by reference to schedule 2 of the Consumer Rights Act 2015?

Whether UBL would share the advice it had given to other Councils that had satisfied their concerns in relation to the above points?

UBL was asked to clarify whether it -

(a) accepts as operator that the contract for the hire of each vehicle is made with Uber and does not attempt to obviate those responsibilities by contracting out or creating secondary contracts between the passenger and driver

(b) maintains that the contract for hire exists between the passenger and driver, in which case each driver will need an operator licence; or

(c) has a third potential scenario to explain its operating model.

UBL was also asked to answer the following questions -

1. Why is the new contract created between the customer and driver necessary?

2. What are the terms of that contract?

3. What detail is the person making the booking given, at the time the contract is created, of-

a. The terms of the contract

b. How the contract changes Uber’s obligations as a private hire operator

c. The person or company with whom they are contracting for the ‘transportation contract’

4. How is the new contract either neutral or beneficial to the person making the booking?

5. When the customer is considering which vehicle to select from the app, what information are they given about the person they will be contracting with, to help them choose which case to select?  Do they have sufficient information to, for example, avoid a transport provider that they do not wish to use?
 
The final information in support of the theory of Lee Ward was that Uber themselves do not accept the booking request, but rather the driver does was gained from an FOI to Reading Council  where the officers stated:

“Officers are concerned that due to the way Uber works by listing the closest driver/vehicle to the customer, any vehicle from any borough within close proximity would be able to access the job and complete the booking.”

Furthermore, from the FOI stated above from Reading, the grant of and Operators License was refused. No challenge has been made by Uber against this refusal.

To summarise.

It is believed that the information shown is enough evidence to prove that Uber do not accept the booking request of the customer, but the driver does. This then puts the driver the person responsible for the acceptance of the booking and in doing so is required by law to have an Operators Licence.

----------------------------------

Bookings


The Uber system has no facilities to take a ‘Booking’ prior to the driver accepting the job direct from the customer. If there are no cars available the Uber system will state ‘No cars available’ because it is unable to accept any job due of that lack of facility to store and record such a booking.

This is unlike a standard taxi/ph company that will accept a job even if there are no cars immediately available and will store that job as recorded until dispatched to a suitable vehicle.

This is clearly defined using Uber’s own information on the Uber website with regards to what it calls “Scheduling” which is a faux booking system. Uber have probably been advised to use the word ‘Scheduling’ as this cannot be regarded as legally contracted ‘Pre-Booking’

Uber website - Scheduling
“Scheduling a ride in advance
Uber now includes the option to schedule a ride 15 minutes to 30 days in advance using the Scheduled Rides feature.
HOW SCHEDULED RIDES WORK
The Scheduled Rides feature allows you to select a 15 minute pickup window for a driver to come pick you up. A driver will be requested on your behalf before the start of your 15 minute window so that it arrives in the window and you're on your way to your destination. Scheduling a ride in advance does not guarantee you'll be connected with a driver. In the rare case a driver cannot be found, you'll be notified at the end of your selected time window.”

---------------------------------

The way that Uber gets around this faux booking system is that the customer Uber App  simply uses the customers mobile phone to ‘ping’ a request a few minutes ahead of the required time.

No ‘Booking’ is taken prior to the ‘ping’. The ‘ping’ is merely a mechanism to activate a method to trigger the customer’s calendar system. Effectively an alarm clock alert.

If the customer sets a ‘Scheduled’ ride ahead of time... but then turns off the mobile... then the ‘ping’ will not be sent a few moments before the required journey.

Because there is no facility for a recorded ‘Pre-Booking’ this is exactly why it states: “Scheduling a ride in advance does not guarantee you'll be connected with a driver”

It specifically does not state: “Scheduling a ride in advance does not guarantee you'll be provided with a car”

Now very importantly we have here an absolute statement from Uber itself describing the clear fact that the customer is indeed connected with a driver.

Why does Uber continually use the phrase ‘Connect with a driver’ ?

This is because it is a ‘Peer to peer service’ and not a ‘Customer to Uber and then Uber to driver service’

The specific use of the term “Connected with a driver” is because this is how the Uber ‘Hailing App’ functions.

This must surely be absolute proof that there is interaction in FIRST instance between the customer and the driver and that Uber itself plays not part in the booking request until after the booking has been accepted by the driver.... and that Uber is only involved in the SECOND instance of recording the booking by ‘back-filling’ the journey details after the driver has been directly connected with the customer.

This in direct contravention of the ‘Blue Book’:

Section  ‘28.5   accept for the immediate hire of a private hire vehicle while the driver or that vehicle is on a road or other public place, except where such offer is first communicated by the operator to the driver by telephone or by apparatus for wireless telegraphy fitted to that vehicle and the driver has no knowledge of such offer prior to such communication


MS: Please could you also confirm that we may forward your email to Uber for their comments on the working of the Uber App vs a Hailing App so that we can take an informed view of the technologies involved.


AP: Yes please do but under the strict provision that you include the following questions which are relevant to the subject of the  difference between a ‘Booking APP’ and a ‘Hailing APP’and provide me with the response from UBL which I can then analyse.


1. If Uber has no involvement in the contract between the customer and the driver of the vehicle, who accepts the booking?

2. If Uber accepts the booking, how does it have no involvement in the contract between the customer and the driver?

3. If Uber considers that the driver accepts the booking, does it accept that the driver must also hold a Private Hire Operator licence to accept bookings?  If this is the case, what steps will Uber take the ensure that all bookings are only given to licensed operators?

    4: Does the Uber app allow to pre-book a job/journey on the Uber servers as a legal serviceable
       contract  without the requirement for the customers mobile phone to be active prior to the time     
       of that ‘Scheduling’?

5: Does the process of ‘Scheduling’ require the customers mobile phone to active at all time
  prior to the time set by the customer to be connect with a driver?



If Uber cannot provide the full answers required then the assumption will be that it is unwilling to cooperate and then the term ‘Fit and proper’ can indeed be examined.


Please note that whilst this document has concentrated on the matter of the distinction between a ‘Booking App’ and a ‘Hailing App’ some of the contents made be repeated in a separate documents which will refer the renewal of the UBL  2017 Brighton & Hove Operators Licence.


With regards


Andrew Peters
Secretary
GMB Brighton & Hove Taxi Section

Cc Trade Members
Jim Whitelegg - Head of Licensing
Jo Player - B&H Trading Standards
Simon Court - B&H Legal Department
Councillor Jackie O’Quinn
Councillor Lee Wares
Councillor Dee Simpson
Councillor Lizzie Deane
Councillor Lynda Hyde

*With thanks to Lee Ward (ALPHA) Sheffield for permission to reproduce/adapt his original article
Part 4: Uber Hailing App (two documents)
Martin Seymour
Hackney Carriage Office
Brighton & Hove City Council


September 21 2017

Dear Martin

Further to my correspondence to you on September 20 2017 I now wish to add further information to be included with that document which has only come to light today.

A recent Freedom of Information request to TfL of correspondence between TfL and Uber has provided the following which effectively describes how the Uber system works by connecting the driver with the customer directly in the First instance and  the job recorded by back-filling in the Second instance.

A breakdown of the information and comments:

“1: A rider requests a booking user the Uber app by setting the location in which they would like to be picked up.”

“2: The Uber system locates the most appropriate driver to offer that trip to based (sic) on the criteria set by the local Uber staff managing the system through the dispatch tools”

“3: The driver confirms that he/she is available to complete the booking.”

At this point no booking has taken place until the driver takes the job. If no driver is available then no booking is accepted by the Uber system.

When the driver accepts the job this is the First Instance which is a Hailing direct from the customer to the driver

“4: The request is accepted by the relevant Uber operator associated with the driver (in accordance with the triple-licensing requirement) with confirmation of the booking being sent by Uber to the rider (including the driver’s name, photograph, vehicle registration and make/model).”


Only when the driver has taken the job directly from the customer after being Hailed  is the job recorded and then ‘Back-Filled’ in the Second Instance to “.....the relevant Uber Operator”  as shown in the  example of the  Flow Chart of the ‘Hailing App’.

The ‘relevant Uber Operator’ has absolutely no knowledge of the job until the driver has accepted the job direct from the customer unlike a ‘Booking App’.

This cannot be any clearer.


“5, The relevant operator maintains the record of the booking in accordance with its local licensing conditions”


This is unequivocal evidence from Uber itself that the Uber App is indeed a ‘Hailing App’ because there is no intervention from a licensed Operator until the driver has accepted the ‘Hail’ directly from the customer.

It needs to be made clear that Uber app itself is not a licensed Operator as the main function is simply a piece of software. Effectively the customer could be standing in the street holding the mobile phone with the Uber customer app open and simply wave the mobile in the air to ‘Hail’ the driver.


Andrew Peters
Secretary
GMB Brighton & Hove Taxi Section

Cc Trade Members
Councillor Jackie O’Quinn
Councillor Lee Wares
Councillor Dee Simpson
Councillor Lizzie Deane
Councillor Lynda Hyde