Tracey Withey v Registrar for Approved Driving Instructors

This is an appeal against a decision of the Registrar of Approved Driving Instructors (‘the Registrar’) made on 3 January 2025 to remove her from the Register of Approved Driving Instructors on the grounds that she refused to undertake a ‘test of continued ability and fitness to give instruction’ (a check test) contrary to the requirements of the Road Traffic Act 1988.

The reasons for this decision were set out in the to the Appellant dated 3 January 2025:

In the response to the appeal the Registrar relies only on the failure to attend the appointments on 4 November 2019, 4 March 2020 and 28 October 2024.

Section 123(1) of the Road Traffic Act 1998 (the 1998 Act) prohibits the driving instruction for payment unless the instructor’s name is on the Register of Approved Driving Instructors (the Register) or he is the holder of a current licence issued under Section 129(1) of the 1998 Act.

Section 125(5) of the 1998 Act imposes a condition for an Approved Driving Instructor to submit themselves for a check test if required to do so by the Registrar.

Under Section 128(1) the Registrar may remove the name of a person from the register if he is satisfied that any of the relevant conditions was fulfilled:

One of those relevant conditions is a refusal to undergo a check test.

Thus, where an Approved Driving Instructor refuses to undergo a check test within the current registration period, the Registrar may remove that person from the Register under section 128(2)(c) of the 1998 Act.

An appeal against the decision of the Registrar to remove a person from the Register can be made to this tribunal.

When making its Decision, the tribunal stands in the shoes of the Registrar and takes a fresh decision on the evidence available to it, giving appropriate weight to the Registrar’s decision as the person tasked by Parliament with making such decisions. The burden of satisfying the tribunal that the Registrar’s decision was wrong rests with the Appellant.

The Appellant’s name was first entered on the register in May 2009 and removed following the expiry of her certificate of registration on 1 June 2013.

The Appellant’s name was re-entered into the Register in May 2014. After the Appellant failed to attend check tests dated 12 July 2017 and 4 September 2017, the Registrar wrote to her on 6 November 2017 and informed her that her name was to be removed from the register. The Appellant unsuccessfully appealed this decision to the First-tier Tribunal, and the Appellant’s name was removed from the Register on 8 June 2018.

The Appellant’s name was re-entered on the Register in May 2019 and removed following the expiry of her certificate of registration on 1 June 2023. During that period of registration the Appellant failed to attend check tests on 4 November 2019 and 4 March 2020.

Her current period of registration began when her name was re-entered on the Register in June 2024. Her current period of registration is due to expire at the end of June 2028.

By letter dated 5 August 2024 the Appellant was invited to attend a check test on 28 October 2024. The Appellant failed to attend the check test.

By letter dated 30 October 2024 the Registrar wrote to the Appellant to give notice that the Registrar was considering the removal of her name from the Register because she had failed to attend tests on 12 July 2017, 4 September 2017, 4 November 2019, 4 March 2020 and 28 October 2024.

The grounds of appeal are, in summary, that the Appellant has not been working as a driving instructor because she is recovering from a leg injury and has undergone surgery and physiotherapy. The Appellant states that she has worked hard for her licence and invested time and money. She says that if her licence is taken away she will not have the choice to go back into the profession when she chooses to.

The Registrar, in his response, states that the reasons for his decision were:

I read and took account of a bundle of documents and heard from the Appellant and the Registrar.

It is clear from section 128(1) that the Registrar is not entitled to remove a person’s name from the Register on the basis of a refusal to undergo a check test if that refusal took place before the entry on the Register, or, if the Appellant’s name has been retained under the Register under section 127, if the refusal took place before the name was retained.

In this case, that means that the Registrar cannot remove the Appellant’s name on the basis of a refusal that took place before her name was re-entered into the Register in June 2024.

The failures to attend the check tests that occurred before June 2024 are therefore only relevant in so far as they cast light on whether the Appellants failure to attend the most recent test in October 2024 amounts to a refusal to undergo a test and/or as matters to take into account when considering whether or not the Registrar should exercise his discretion to remove the Appellant’s name for the refusal in October 2024.

It was not clear to me in the hearing that the Registrar’s representative was aware of that limitation in section 128(1), nor is it clear from the Registrar’s letter of 3 January 2025 or in the response.

As I am standing in the shoes of the Registrar and remaking the decision, any error that was made in taking into account a refusal prior to June 2024 can be corrected and is not a reason for allowing the appeal if I consider that the decision to remove the Appellants name was right.

In her representations to the Registrar, the Appellant stated that her car broke down so she could not attend the check test on 28 October 2024. I asked her about this in the hearing. She said that her car had broken down and she had had to get the AA to recover it back to her property. I asked her if she had called the DVSA to let them know and she said she had tried but she could not get through. I asked her if she has emailed the DVSA afterwards and she said that she had. She had not provided a copy of that email in the bundle, and the Registrar’s representative said that there was no such email on file. The Appellant said that the alternator had broken. She had not included any documentary evidence of the breakdown in the bundle.

I note that the Appellant has failed to attend 4 check tests in periods of registration prior to this one. She has not attended any check tests since her name was entered on the Register in 2009. She was unable to remember why she did not attend the test in 2019 and appeared not to have made any efforts to find out before the hearing, despite knowing that that was relied on by the Registrar in this appeal. In relation to the test in 2020, she said it might have been that she did not receive the invitation because she sometimes does not get post. This was the explanation she gave in her previous tribunal appeal. That explanation was rejected by the tribunal who found that she had been choosing which correspondence to open and to ignore other correspondence.

Taking into account the Appellant’s previous failures to attend, that the Appellant has clearly stated that she is not currently working as a driving instructor, that the Registrar has no record of her emailing them to inform them of the reason for her non-attendance and in the absence of any supporting evidence of her broken down car, I am not satisfied that the Appellant had a reasonable excuse for not attending the check test in October 2024.

Taken in the light of the Appellant’s multiple previous failures to attend, I find that the failure to attend the check test on 28 October 2024 amounted to a refusal to undergo the check test.

I bear in mind the significant importance which attaches to the integrity of the Register. Entry on to and remaining on that is a public endorsement of a high standard of competence on the part of ADIs. For the public to have trust in it, the Register must show integrity and that those on it have high standards. Part of that is achieved by the need for those on the Register to pass regular tests; doing so adds to the trust placed on the Register. Allowing those who do not meet the standards to remain on the Register undermines the trust placed in it with serious consequences for those who do maintain the necessary high standards. There is no exception to meeting these standards for those who are not currently working as driving instructors.

These are matters of wider, and public interest, which attract significant weight even where, as here, removal from the Register has consequences for an individual.

I accept that the Appellant will be put to further expense and inconvenience if her name is removed from the Register but it is important to balance the consequences for the individual against the need to maintain the integrity of the Register.

Looking at the Appellant’s history of failing to attend, and taking into account the fact that as a result of this she has not undergone any check test since her first registration in 2009 and taking account of all the factors set out above the Appellant has not persuaded me that the Registrar’s decision to remove her name from the Register was wrong. The appeal is dismissed.