P Kitchen v Registrar of the Driving Standards Agency

This was an appeal from a decision by the Registrar to remove the Appellant’s name from the register of approved driving instructors pursuant to s.128(2)(d) of the Road Traffic Act 1988 (“the Act”) in that he failed to pass a continued ability and fitness test (known as a “check test”) as required by s.125(5) of the Act.

Miss Jackson opened the hearing by outlining the case for the Registrar. The Appellant’s name had first been entered in the register in December 2005. Although the Act permits removal of a name after a single failure of a check test, it is usual for an instructor to be allowed three attempts before removal is ordered. By reason of the word “may” in s.128(1) of the Act removal is discretionary. The third attempt at a check test is usually conducted by a different and more senior examiner. By s.133(1) of the Act an appeal against the conduct of a check test lies to magistrates or to a sheriff; and by s.133(3) no such appeal may be made to the Tribunal under s.131 of the Act. It is, of course, the latter which founds the Tribunal’s jurisdiction.

The Appellant was required to make himself available for check tests on six occasions: 22 January 2007, 11 April 2007, 13 March 2008, 21 May 2008. 30 July 2008 and 1 October 2008. On two of these he gave the reason for non-attendance as domestic problems; on another he said that he wanted to attend a different test centre; but on the other occasions no reason was given. When the Registrar invited the Appellant to make representations before he considered the removal of his name from the register the Appellant failed to reply.

In a written submission to the Tribunal the Appellant states that he was unaware of the Registrar’s (registered) letter because his wife had picked it up and then left it in their car. He continues:-

“Secondly I am not working as driving instructors at this time so do not have a vehicle, client base or route. I have turned up for an appointment in the past and was told I could not do the check test as I did not have a planned route. I have informed the DSA of this.

“I have informed the DSA I am unable to attend the tests and have written on the invite slips that I am not working as a driving instructor.

“I do wish to continue to remain on the register and am aware I will need to be tested if I decide to instruct any pupils”

The Appellant was given ample time during which he could have resigned if he had wanted to do so. He has been required to take a check test on numerous occasions and has failed to attend. We are satisfied that the Appellant’s name should be removed from the register. The appeal is dismissed, with immediate effect.