Graeme Wilson Ross v Registrar of Approved Driving Instructors

“1988 Act” means the Road Traffic Act 1988;

“EA” means the Equality Act 2010;

“ECHR” means the European Convention on Human Rights

“HRA” means the Human Rights Act 1998;

‘On no less than three occasions, the Appellant undertook tests of continued ability and fitness to give instruction but failed each time to reach the required standard.

Following each of the first two tests, the Appellant was advised of his shortcomings so as to give him the opportunity to consider these and to improve his standard of instruction. However, he still failed to reach the required standard on the third test.

I therefore considered that the Appellant had been given adequate opportunity to pass the test but that he had failed to do so. Therefore, in the interests of road safety and consumer protection, I felt obliged to remove his name because he had been unable to satisfy me that his ability to give driving instruction was of a satisfactory standard.’

‘Background

The Appellant has been an Approved Driving Instructor since January 2002. He is experienced and well regarded in his local area. The appellant is currently suffering from a degenerative condition affecting his shoulder joints. He has been affected by this condition since childhood with the onset of symptoms commencing in 1985 [pages 83-89 of bundle] and this condition has progressed over the years and is still progressing. He has had several surgeries on both shoulders. The Appellant has also been treated with nerve blocks, pain medication, physiotherapy and acupuncture. None of these have been successful. It is submitted that the Appellant has a long term impairment. Extracts from the Appellants medical records are produced and referred to at pages 16 to 89 of the bundle illustrating the progression of his condition. The Appellant's treating physician has stated that he is impaired. It is submitted that this impairment is less than trivial. The current medical position is that the Appellant is suffering with osteoarthritis and is undergoing further investigations. Although missing from his records the Appellant has undergone an MRI scan on his neck and shoulder on 14th May 2023 and will be seeing a consultant on 26th June 2023 for the results of the scan and to review his treatment plan. The Appellants symptoms include restricted movement in his arms, extreme pain, fatigue, difficulties concentrating and sleeping. The appellant can no longer partake in exercise or activities requiring him to have his arms unsupported. His social life has suffered as a result and he has difficulties carrying out day to day activities like carrying objects and moving his arms above head height. It is submitted that the Appellant's impairment has a substantial effect on his ability to carry out day to day activities. For example see pages 14 and 31 of the bundle where the Appellant states that he cannot lift his 2 year old son. It is submitted that the Appellants impairment is a disability in terms of Section 6 of the Equality Act 2010. The claimant has the protected characteristic of disability and is subject to the protections afforded to him by that act. Due to the protected characteristic of the Appellant being disable the DVSA must take steps involved in meeting the needs of disabled persons that are different from the needs of those who are not disabled. It is submitted that the Appellant's disability does not cause any risk or danger to the public as he can manage its effect with treatment and reasonable adjustments which are set out at par 2 below.

The Appellant is able to work with adjustments. The adjustment are as follows:

he takes more frequent breaks.

has a car with armrests

he works reduced hours.

The Appellant requires these adjustments so that he can manage his symptoms. Sitting for prolonged periods can cause his symptoms to worsen. The Appellant is self-employed and has implemented these adjustments which allow him to continue working. The Appellant's pupils are aware of the adjustments and he has never received a complaint arising out of them. The adjustments have not inhibited the appellant's ability to teach, however, he would be placed at a disadvantage to those who do not share his disability if the adjustments were not made or not possible. The Appellant is an experienced instructor of 20 years and is held in a high regard by his pupils and in his local area.

The Appellant is being treated by his general practitioner and has been referred to a specialist at the Queen Elizabeth Hospital in Glasgow. He attended an appointment with a consultant on 22nd February 2023 [pages 26-27). The consultant suspects that the Appellant may be suffering from arthritis in his neck and shoulders and has noted some deterioration. The consultant has referred the Appellant for further investigations including an MRI which was carried out in May 2023 and the results are awaited. The Appellant's condition is treatable and can be managed. The Appellant's prognosis and treatment as at 17 March 2023 is described in the medical report at pages 10 and 11. The Appellant has osteoarthritis in his neck causing pain and has a long history of bilateral degenerative shoulder pain. He has managed to work but has tried to avoid painkillers which could impact his ability to work. He is currently treating his condition with paracetamol as it will not cause drowsiness. The pain management regimen recommended by the Appellants doctor is one which avoids any drugs likely to impair his ability to work. The appellant's function has remained the same for a number of years but his impairment is one which has been present for a number of years and managed with adjustments. The Appellant is continuing to work with his treating physicians and his consultants and is managing his condition. The Appellant has been proactive in the management of his condition.

There is no risk presented by the Appellant to public safety and other road users because his condition is well managed and he follows the instructions of his treating doctors. As per the report by his treating physician the Appellant specifically avoided medication which would stop him driving or impair his concentration. Further there is no impact on the Appellants ability to teach and the quality of his teaching. This is due to him following the advice of his treating physicians and making reasonable adjustments which alleviate his symptoms but do not affect the learning experience of his pupils.

The Appellant is required to undergo regular testing of his competence. He was suffering from his condition impairments during the time of his tests. The Appellant's symptoms cause pain which can affect his concentration and his sleep. He works currently with adjustments by way of reduced hours. The Appellant's symptoms can be aggravated by stress and he can experience difficulties with the confines of the car if adjustments are not made. The Appellant has managed to work with reduced hours and more frequents breaks which are adjustments made to remove any disadvantage to him due to his symptoms. The test have comprised of his teaching being assessed. The Appellant teaches with adjustments and he believes these adjustments ought to have factored into the test to remove the disadvantage faced by the Appellant whilst teaching. The Appellant was not offered any adjustments in respect of his test and this contributed to his poor performance and test failures. The Appellant was at a disadvantage to persons without his disability because no account was taken of his disability and no steps were taken to remove that disadvantage during the tests.

The Appellant has sat three tests on the following dates 16 December 2021, 24 June 2022 and 25 November 2022. It is accepted the appellant failed these tests. The Appellant was experiencing the symptoms of his condition during the period of December 2021 and December 2025 [sic]. The Appellant's condition to date has not resolved and is still under investigation. The Appellant can work with adjustments by way of reduced hours, frequent breaks and the use of an arm rest. No adjustments were made in place for the Appellant during his tests nor were any enquires made into the appellants medical condition by the respondents.

Test number 1

Test number 2

Test number 3

‘The Appellant accepts that he failed the test in question. He submits that he took account of the feedback provided by the examiner. The points he failed on were relatively minor and none of these cause the examiners any safety concerns [Replacement Test sheets]. We would refer the panel to our replies at parts 1 and 5. The Applicant’s evidence in respect of the criticisms made of him during his test 1 was in summary that he could not recall exactly but he was required to take extra training. He had not communicated a fault at the time. He was advised he was not dangerous. The Appellant was advised to undertake additional personal study and online training which he undertook. The concern for the Appellant was that his impaired performance arose from his medical condition. It is submitted that despite reflecting on the feedback and undertaking additional training by way of online training videos the underlying medical condition had not resolved. The nature of the feedback the Appellant received was broadly similar to that given to him in test 1. The Appellant was still adjusting his hours and working with his GP in respect of treatments [page 27-28]. The Appellant cannot take strong medications as this would render him unable to drive due. The Appellant has been working with his GP to maintain his pain levels without the need for strong medication. It is submitted that the medical position has moved on for the Appellant and he is now on a waiting list for surgery. It is hoped that this operation will be successful in alleviating his condition. It is submitted that on that basis the Appellant may make a recovery or at least considerable improvement the Appellant is taking steps to ensure his performance improved.’

‘This ought to have been taken to sign post the possibility of rights under the Equality Act 2010 being engaged. At its lowest, however, the Appellant brought a health condition to the attention of the Registrar which it is submitted requires a degree of further enquiry in order to exercise their discretionary powers reasonably and proportionately. At the very least the Registrar could have asked relevant such as “do you have an impairment and if so how does this affect you?”. This nature of enquiry is absent which we submit show that no enquiry or consideration was made.’

‘… the Appellant is disabled in terms of the Equality Act 2010 (EA). He has a long-term physical impairment that has a substantial impact on his day to day activities as per S.6 of the EA. This is supported by the medical evidence provided and summarised by the GP report at [pages 27-28]. We submit that this test is a different one than applied to disabled instructors and those provisions are not relevant to this case as it is disability status under the act which affords protection to disabled people under the Equality Act 2010. This RTA provisions serve a different purpose of protecting the public where there is a potential danger. We would submit that not all disabilities are such that they would cause danger to the public. Had parliament’s intention been to require all drivers with disabilities in terms of the Equality Act 2010 to be registered then they would have legislated accordingly. It has not done so and there is accordingly a class of persons who are covered by the Equality Act 2010 but not by the requirements the RTA. It is submitted that the Appellant is such a person.’

‘Public confidence could be damaged by unduly harsh decisions taken by Registrars in circumstances where there is new information available and in particular where it relates to those with genuine ill health impacting their ability to sit and pass their tests. It is submitted those who fail three tests with health related impairments are more likely to be disabled than not and therefore there is a real risk of discrimination occurring. Decisions taken by Registrars that fail to 1) make enquiries as to the genuineness of medical conditions and 2) consider the nature of medical evidence provided, could undermine public confidence in that there is no scrutiny being applied and there is a lack of consideration of potential Equality Act issues. It is submitted that Equality Act obligations on decision makers are an important factor in maintaining public confidence. We submit that society has determined that these matters of such importance that parliament has legislated.’

‘… had all the hallmarks of a reasonable adjustment request. A disabled person was setting out their impairment, the effect on them and a possible adjustment to reduce that impact. It is submitted that this ought to have been sufficient to have alerted the Registrar’s obligations in terms of the Equality Act 2010. It is submitted that the Registrar did not approach the decision to remove the Appellant with an open mind nor did they carry out a proper process. The Appellant’s submission is that the decision to remove him was discriminatory and therefore unlawful …’

‘(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice (PCP) which is discriminatory in relation to a relevant protected characteristic of B's.’

‘… to remove a person who had failed three tests. This PCP disadvantaged disabled people and places them at a disadvantage to those who are not disabled. A disabled person is more likely to have an impairment which could affect their performance over the period of time their tests are sat. The lack of flexibility demonstrated by the Registrar places disabled people at a disadvantage. This disadvantage could have been removed by allowing an additional test which would have been an adjustment capable of removing the disadvantage to the Appellant.’

‘Having had the opportunity to consider the case of Edis in full. The Appellant’s submissions are as follows. The case is not completely on all fours with the present case on the facts in that Mr Edis had refused to present himself for testing. In the Appellant’s case he has presented himself for testing, but his results fell short. In his evidence the Appellant relayed the advice and feedback he received which in short was that he had failed to pick up on minor mistakes made by pupils when they occurred. The Appellant explained the reason for this was that he was experiencing pain due to his condition but that he would usually stop and go through these points at an appropriate time. Not necessarily instantly. His feedback was that he was not dangerous and was told that some of his lessons were in fact good lessons but just did not hit the test marks. He accepted what had been told to him and undertook the additional training recommended. The Appellant unlike Mr Edis does not wish to remain on the register without submitting himself for testing, nor does he challenge the test results. The Appellant is seeking an additional opportunity to sit his test and for the tribunal to use its discretion. It is submitted that the Appellant’s performance was impacted by his medical condition which it is submitted is a disability. Evidence of this has been provided and it was not challenged. It is submitted that in a case where there is unchallenged medical evidence in mitigation of failed tests it would not have a detrimental effect on public confidence to allow one further test attempt. The Appellant is not asking for indefinite chances. This would be an entirely different question and one that could have a detrimental effect on public confidence. The Appellant is asking for two things. One is time to allow his condition to improve and to be allowed another chance to sit the test. It is submitted that this course of action would have no detrimental effect on public confidence and is a reasonable one in all the circumstances. There is no risk of a flood gate effect as was a potential concern in Edis as in order to succeed ADIs must produce evidence, and this be considered in light of the facts. The grounds proceeding on in this case differ considerably to those advanced in Edis. The question of whether what is being asked would call into question public confidence and the robustness of the register is a valid on and the Appellant’s submission is that what is being asked in this case would not undermine there. The register was not in a position to consider the evidence this tribunal had and this is the purpose of the appeal process.’

‘131. Appeals.

A person who is aggrieved by a decision of the Registrar—

may appeal to the First-tier Tribunal.

A person who is aggrieved by a decision of the Registrar—

On the appeal the First-tier Tribunal may make such order—

Since Mr Glen accepted (in our view rightly) that the decision of the licensing authority was a relevant matter for the district judge to take into consideration, whether or not the decision is classified as "policy based", the issues are quite narrow. They are:

We do not consider that it is possible to give a formulaic answer to the first question because it may depend on a variety of factors - the nature of the issue, the nature and quality of the reasons given by the licensing authority and the nature and quality of the evidence on the appeal.

As Mr Matthias rightly submitted, the licensing function of a licensing authority is an administrative function. By contrast, the function of the district judge is a judicial function. The licensing authority has a duty, in accordance with the rule of law, to behave fairly in the decision-making procedure, but the decision itself is not a judicial or quasi-judicial act. It is the exercise of a power delegated by the people as a whole to decide what the public interest requires. (See the judgment of Lord Hoffmann in Alconbury at para 74.)

Licensing decisions often involve weighing a variety of competing considerations: the demand for licensed establishments, the economic benefit to the proprietor and to the locality by drawing in visitors and stimulating the demand, the effect on law and order, the impact on the lives of those who live and work in the vicinity, and so on. Sometimes a licensing decision may involve narrower questions, such as whether noise, noxious smells or litter coming from premises amount to a public nuisance. Although such questions are in a sense questions of fact, they are not questions of the "heads or tails" variety. They involve an evaluation of what is to be regarded as reasonably acceptable in the particular location. In any case, deciding what (if any) conditions should be attached to a licence as necessary and proportionate to the promotion of the statutory licensing objectives is essentially a matter of judgment rather than a matter of pure fact.

The statutory duty of the licensing authority to give reasons for its decision serves a number of purposes. It informs the public, who can make their views known to their elected representatives if they do not like the licensing sub-committee's approach. It enables a party aggrieved by the decision to know why it has lost and to consider the prospects of a successful appeal. If an appeal is brought, it enables the magistrates' court to know the reasons which led to the decision. The fuller and clearer the reasons, the more force they are likely to carry.

The evidence called on the appeal may, or may not, throw a very different light on matters. Someone whose representations were accepted by the licensing authority may be totally discredited as a result of cross-examination. By contrast, in the present case the district judge heard a mass of evidence over four days, as a result of which he reached essentially the same factual conclusions as the licensing authority had reached after five hours.

Given all the variables, the proper conclusion to the first question can only be stated in very general terms. It is right in all cases that the magistrates' court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.

As to the second question, we agree with the way in which Burton J dealt with the matter in paragraphs 43-45 of his judgment.

We do not accept Mr Glen's submission that the statement of Lord Goddard in Stepney Borough Council v Joffe, applied by Edmund Davies LJ in Sagnata Investments Limited v Norwich Corporation is applicable only in a case where the original decision was based on "policy considerations". We doubt whether such a distinction would be practicable, because it involves the unreal assumption that all decisions can be put in one of two boxes, one marked policy and the other not. Furthermore, Stepney Borough Council v Joffe was not itself a case where the original decision was based on "policy considerations". In that case three street traders had their licences revoked by the London County Council after they were convicted of selling goods at prices exceeding the maximum fixed by statutory regulations. On appeal the magistrate decided that they were still fit to hold the licences. The county council unsuccessfully argued before the Divisional Court that the magistrate's jurisdiction was limited to considering whether or not there was any material on which the council could reasonably have arrived at its decisions to revoke the licences. The court held that the magistrate's power was not limited to reviewing the decision on the ground of an error of law, but that he was entitled to review also the merits. It was in that context that Lord Goddard went on to say that the magistrate should, however, pay great attention to the decision of the elected local authority and should only reverse it if he was satisfied that it was wrong.

It is normal for an appellant to have the responsibility of persuading the court that it should reverse the order under appeal, and the Magistrates Courts Rules envisage that this is so in the case of statutory appeals to magistrates' courts from decisions of local authorities. We see no indication that Parliament intended to create an exception in the case of appeals under the Licensing Act.

We are also impressed by Mr Matthias's point that in a case such as this, where the licensing sub-committee has exercised what amounts to a statutory discretion to attach conditions to the licence, it makes good sense that the licensee should have to persuade the magistrates' court that the sub-committee should not have exercised its discretion in the way that it did rather than that the magistrates' court should be required to exercise the discretion afresh on the hearing of the appeal.

As to article 6, we accept the propositions advanced by Mr Matthias and we agree that the form of appeal provided by s182 and schedule 5 of the Act amply satisfies the requirements of article 6.

Although the point is academic in the present case, we doubt the correctness of part of the district judge's ruling where he said:

Judicial review may be a proper way of mounting a challenge to a decision of the licensing authority on a point of law, but it does not follow that it is the only way. There is no such express limitation in the Act, and the power given to the magistrates' court under s181(2) to "remit the case to the licensing authority to dispose of it in accordance with the direction of the court" is a natural remedy in the case of an error of law by the authority. We note also that the guidance issued by the government under s182 and laid before Parliament on 28 June 2007 states in para 12.6:

‘45. It may be helpful to say more about this point. Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal. That was made clear in Sagnata Investments Ltd v Norwich Corpn [1971] 2 QB 614, concerned with an appeal to quarter sessions against a licensing decision taken by a local authority. In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court [2011] PTSR 868, para 45, Toulson LJ put the matter in this way:

‘Reasonable adjustments and the Equality Act

The laws regulating disability discrimination are designed to enable the disabled to enter as fully as possible into everyday life. This requires not merely outlawing discrimination against the disabled; it also needs those who make decisions affecting the disabled to take positive steps to remove or ameliorate, so far as is reasonable, the difficulties which place them at a disadvantage compared with the able bodied. Baroness Hale identified the reason for this in Archibald v Fife Council [2004] ICR 954. After noting that traditional anti-discrimination law requires treating the relevant characteristic, for example, race or sex as irrelevant, she explained why this approach does not suffice with respect to the disabled:

The concept of reasonable adjustment was first adopted in the Disability Discrimination Act 1995. The scope of that obligation was then extended in 2005, and the Equality Act has consolidated, simplified and made certain amendments to the earlier legislation.

The Act is now structured, so far as reasonable adjustments are concerned, in the following way. First, section 20 of the EA 2010 sets out in generic terms the content of the duty to make reasonable adjustments. It provides as follows:

Duty to make reasonable adjustments

The duty comprises the following three requirements.

This section does not impose the duty to make adjustments; it simply defines what may be required when the duty is imposed. However, not all three requirements are engaged in all cases; the scope varies depending upon the circumstance in which the duty arises and different schedules to the Equality Act apply to different situations, for example in the fields of education and premises.

The relevant schedule in this case is schedule 2. This must be read together with part 3 of the Act which applies to those providing services and exercising public functions. The task of assessing claimants for ESA involves the exercise of a public function.

Section 29(6) provides that a person exercising a public function “must not ... do anything that constitutes discrimination, harassment or victimisation.” The obligation to make reasonable adjustments is applied to persons exercising public functions by section 29(7).

Schedule 2 to the Act then specifies the nature of the duty with respect to public service providers. Apart from applying all three requirements in sections 20(3), (4) and (5), it also modifies the concept of reasonable adjustment in certain ways. Two paragraphs are of particular relevance to this appeal. First, para 2(4) provides as follows:

The term “substantial” is defined in section 212(1) as meaning “more than minor or trivial.” It is not, therefore, a particularly high hurdle to establish substantial disadvantage.

The modification of the duty so that it applies to disabled persons generally creates what is frequently referred to as an anticipatory duty: the person exercising the public function has to anticipate the reasonable steps necessary to ensure that disabled persons generally, or of a particular class, will not be substantially disadvantaged.

The final provision to which reference should be made, and which is also central to a ground of appeal, is section 21 which is as follows:

The proceedings for enforcing breach

Generally, proceedings relating to a contravention of the Equality Act 2010 have to be brought in accordance with Part 9 of that Act: see section 113(1). Part 9 provides that discrimination claims relating to the exercise of public functions can be brought by a claim in the county court: see section 114(1). The county court has power to grant not only damages but also any remedy which could be granted by the High Court in a claim for judicial review: see section 119(2).

However, by section 113(3)(a), Parliament has provided that the obligation to bring proceedings in accordance with part 9 of the Act “does not prevent a claim for judicial review.” Hence judicial review could properly be pursued here.’

‘What is a disability?

Disability is defined under section 6 of the Equality Act which is, as relevant to this appeal, as follows:

Disability

A person (P) has a disability if –

In relation to the protected characteristic of disability –

It is immediately apparent that the use of the global description “mental health problem” is apt to describe a very wide range of mental impairments, from severe psychosis to minor adjustment disorders. Since “substantial” merely means “more than minor or trivial”, an applicant may be able to succeed in a claim under the Equality Act even though the long term effect of his disability is small.’

‘Discrimination and the duty to make adjustments

A person who carries out public functions is under a duty to make reasonable adjustments to prevent a disabled person from being disadvantaged by the manner in which he carries those functions out. This duty is both a continuing and anticipatory duty. The duty is imposed by Schedule 2, paragraph 2 whilst the content of the duty is set out in section 20, and in particular, section 20(3) of the 2010 Act.

…

Paragraph 2(5) of Schedule 2 defines what being placed at a substantial disadvantage means and includes suffering an unreasonably adverse experience when being subjected to a detriment (we discuss this in our earlier decision).

that there is a provision criterion or practice that puts disabled persons generally at a substantial disadvantage, and

reasonable steps can be taken to avoid that disadvantage.

The decision of the Court of Appeal in this case is to the effect that to establish discrimination, the duty to the class of disabled persons generally is then narrowed down to an individual level under section 21(2):

Failure to comply with duty

At the discrimination stage the claimant needs to show that the failure to comply with the anticipatory duty to make reasonable adjustments is disadvantageous or detrimental to him (see for example Finnigan v Chief Constable of the Northumbria Police [2013] EWCA (Civ) 1191, [2014] 1 WLR 445; in particular the last two sentences of [45] of the judgment).’

‘49. It is clear from the Court of Appeal’s decision that sections 20 and 21 of the Equality Act create a two stage approach to determining whether an applicant can establish discrimination:

are disabled persons generally (or a class of disabled persons) put at a substantial (ie more than minor or trivial) disadvantage by the disputed provision, criterion or practice, and

is it reasonable for steps to be taken to avoid that class disadvantage.

At the second stage the individual (and so here MM and DM, the only individual applicants) has to show that he or she is put at such a disadvantage by the failure to comply with the duty to make reasonable adjustments.’

The Court of Appeal held, however, that although the judge had erred by not taking this approach, the failure of the Chief Constable to adjust her practice, policy or procedure caused no detriment to Mr Finnigan and this was fatal to his claim. This shows that the stepped approach approved by the Court of Appeal in Finnigan means that although generally a court or tribunal should address whether the adjustments advanced on a class basis are reasonable before going on to consider the position of the individual claimant, it can jump to the last stage and consider the position of the individual applicant on an assumption concerning the nature and extent of those adjustments and, based thereon, that there is or has been or will be a failure to comply with the duty to make reasonable adjustments (see the definition of substantial disadvantage in Schedule 2 paragraph 2(5) which refers to a benefit that is or may be conferred and a detriment that the person is or may be subjected to).

So it seems to us, and the contrary was not suggested, that it was permissible for Mr Chamberlain to argue first that the individual claimants could not show that the alleged failure of the Secretary of State to comply with his anticipatory duty by making the adjustments they say are reasonable (and others that can fairly be said to be included in that menu) has caused, is causing or will cause them any substantial (ie more than minor or trivial) disadvantage or has, is or will subject them to any detriment that caused them an unreasonably adverse experience, and that this was fatal to their claims for judicial review.

Additionally it seems to us that this approach reflects the direction of travel of the Court of Appeal in this case, namely that the grant of relief must depend on the claimants or one of them showing on that basis that they suffered substantial (ie more than minor or trivial) detriment.’

‘149 Public sector equality duty

The relevant protected characteristics are—

‘156 Enforcement

A failure in respect of a performance of a duty imposed by or under this Chapter does not confer a cause of action at private law.’

‘The fourth and final question is whether the Registrar’s decision to exercise his discretion to remove the Appellant’s name from the Register was correct. In answering that question it is helpful to consider the purpose of Part V of the Act. The main purpose of the Act is to regulate those who are paid to give instruction in the driving of a motorcar, (s.123 of the Act). The principle way in which that purpose is achieved is by requiring that those who give paid instruction have their name on the Register of ADI’s, which is kept by the Registrar. In order that the public can have confidence in the Register Parliament has put other provisions in place. For example there is a pre-condition to registration that an applicant has passed all three parts of the qualifying examination, there is a requirement that the applicant is and remains a ‘fit and proper person to have his name on the Register’, (which goes beyond ability as an instructor) and s.125(5) provides that: “the entry of a person’s name in the register shall be subject to the condition that, so long as his name is in the register, he will, if at any time required to do so by the Registrar, submit himself for such test of continued ability and fitness to give instruction in the driving of motorcars…..as may be prescribed”. The importance of this provision is that it ensures, by periodic testing, that driving instructors remain sufficiently competent to charge for instruction. It is therefore an important component in maintaining public confidence in the Register. It is important to note that the imposition of the condition is mandatory and that the terms of the condition are that the ADI ‘will, if at any time required to do so by the Registrar’ submit himself’ for a check test. In my judgment once an ADI has been required by the Registrar to submit himself for a check test there is nothing in the Act with permits the ADI to seek to impose his own pre-conditions to submitting himself for a check test.’

‘11. It is clear from the terms of s.125(5) of the 1988 Act that the entry of a person’s name on the Register is subject to a condition that, as long as his or her name remains on the Register, he or she will submit themselves for a check test if required, at any time, to do so by the Registrar. Two points need to be stressed in relation to the wording of s.125(5).

First, the obligation to submit to a check test is firmly placed on each and every person whose name remains on the Register. I say that because the 1988 Act makes it a condition of being on the Register that such people submit to a check test.

Second, the underlining of ‘any’, (in paragraph 11), is mine. The purpose is to stress that the timing of a check test is plainly a matter for the Registrar’s discretion. It follows that it is not something which can be dictated by the Appellant. In exercising his discretion, it is obviously appropriate for the Registrar to consider the circumstances of each individual case, insofar as he has been made aware of them. It will be for him to decide whether or not a particular individual has made out a good case for postponing a check test. It will be for him to decide, if alternative dates are offered, whether such an offer should be accepted.’