Case Reference: FT/D/2025/0435
Transport
Heard by Cloud Video Platform
Before
JUDGE HEALD
MEMBER RAWSTHORN
MEMBER ROANTREE
Between
TAHIR EHSAN
Appellant
and
THE REGISTRAR OF APPROVED DRIVING INSTRUCTORS
Respondent
Representation:
For the Appellant: in person.
For the Respondent: Mr Russell.
Decision: The appeal is dismissed
REASONS
This appeal was commenced by the Appellant pursuant to section 131(2)(b) Road Traffic Act 1988 ("the Act"). It relates to a decision made by the Respondent ("the Registrar") dated 24 March 2025 ("the Decision") to revoke the Appellant's trainee licence pursuant to section 130(1) and (2) of the Act on the grounds that, because he had received a fixed penalty notice and 6 penalty points, he had ceased to be a fit and proper person ("FPP").
What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference by us to any specific submission or evidence does not mean it has not been considered.
Relevant law
To qualify as an Approved Driving Instructor ("ADI") an applicant is required to pass a qualifying examination. This is in 3 parts namely part 1 being a written examination, the driving ability and fitness test in part 2 and the instructional ability and fitness test in part 3. Three attempts are allowed at each part. The whole examination (parts 1-3 inclusive) must be completed within two years of passing part 1. If this is not done then the whole examination has to be retaken.
A person may only provide paid driving instruction if his name is on the Register (section 123(1) of the Act) or if he holds a licence by section 129(1) of the Act and in accordance with The Motor Cars (Driving Instruction) Regulations 2005. A Section 129(1) licence may be granted by the Registrar once an applicant has passed part 2. This is to enable:-
"...a person to acquire practical experience in giving instruction in driving motor cars with a view to undergoing such part of the examination referred to in section 125(3)(a) as consists of a practical test of ability and fitness to instruct."
The Registrar may revoke a licence if the trainee instructor has ceased to be a fit and proper person ("FPP"). The FPP test was considered in Harris -v- Registrar of Approved Driving Instructors [2010] EWCA Civ 808 in which Richards LJ held at para 30:-
".....I do not accept that the scope of the "fit and proper person" condition is as narrow as Mr Leviseur contended. Of course, a central question is an applicant's fitness to be a driving instructor – that he has the requisite instructional ability and driving ability and that he does not pose a risk in any respect to his pupils or other users of the road. The "fit and proper person" condition has obvious relevance to that issue, though the more technical aspects are covered by other, more specific conditions relating to tests, driving licence and the like. But the condition is not simply that the applicant is a fit and proper person to be a driving instructor; it is that he is a fit and proper person to have his name entered in the register. Registration carries with it an official seal of approval: those registered are known as "Driving Standards Agency Approved Driving Instructors."
Guidance and the Code
The DVSA has issued Guidance. It states for example:-
"ADIs are in a position of considerable trust. The ADI Registrar protects the image of the register and maintains the public’s confidence in the ADI industry.
The law says you must be a ‘fit and proper’ person, but does not define what it means.
The ADI Registrar interprets it as the personal and professional standards, conduct or behaviour that could be unacceptable in the eyes of the public and other ADIs.
When deciding if you’re a ‘fit and proper’ person, DVSA will check if you have...any motoring or non-motoring cautions, convictions or fixed penalty notices
It’s also unlikely that you’ll be classed as a ‘fit and proper’ person if you’ve been found guilty of:...driving while using a hand-held mobile phone..."
Additionally a Code has been agreed between the DVSA and the National Associations Strategic Partnership, which is a steering group for approved driving instructor associations. It says for example that the instructor agrees not to use "... mobile devices like phones when driving or supervising client’s driving and only when parked in a safe and legal place."
Mobile phone use
Section 41D of the Act states that:-
"A person who contravenes or fails to comply with a construction and use requirement—
(b)as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device, is guilty of an offence.
The Road Vehicles (Construction and Use) Regulations 1986 ("the 1986 Regs") sets out detailed rules on the use of (for example) a hand-held mobile telephone while driving a motor vehicle. It includes that for example by reg 110(3):-
"No person shall supervise a holder of a provisional licence if the person supervising is using—
(a)a hand-held mobile telephone; or
(b)a hand-held device of a kind specified in paragraph (4)"
at a time when the provisional licence holder is driving a motor vehicle on a road."
Role of the Tribunal
Section 131(2)(b) of the Act provides that "A person who is aggrieved by a decision of the Registrar...(b)to revoke such a licence, may appeal to the First-tier Tribunal."
Section 131 (3) of the Act provides that the Tribunal may make such order "(b)for the removal or the retention of the name in the register, or the revocation or continuation of the licence, (as the case may be) as it thinks fit."
In considering the appeal the Tribunal must give appropriate weight to the Registrar's view. The Court of Appeal in Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31 (26 January 2011) held that the answer to " How much weight was the district judge entitled to give to the decision of the licensing authority?" was:-
"45...the proper conclusion....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."
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 the relevant legislation with making such decisions. It is not the role of the Tribunal to carry out a procedural review of the Registrar's decision-making process but it does need to consider all the circumstances. Our decision is reached on the balance of probabilities.
Evidence and matters considered
We had a bundle of 35 pdf pages and we heard from the Appellant and Mr Russell for the Registrar. We also heard from Mrs Fernando who was the pupil in the car when the relevant incident occurred.
Chronology
In summary:-
after passing parts 1 and 2 the Appellant was granted a 6 month trainee licence on 23 July 2024.
a 2nd 6 month trainee licence was granted on 29 January 2025.
on 30 January 2025 the incident occurred which involved mobile phone use by the Appellant while supervising a pupil and resulted in 6 penalty points and a fine.
on 26 February 2025 the Appellant reported the points to the Registrar.
on 6 March 2025 the Registrar told the Appellant that he was considering revocation of the licence on the basis that he was no longer a FPP.
on 20 March 2025 the Appellant made representations.
on 24 March 2025 the Registrar notified the Appellant of the Decision to revoke the licence. He also directed that by section 130(6) of the Act the Decision would not take immediate effect and so the Appellant has been able to continue to give paid lessons pending the outcome of this appeal.
the Appellant has applied for a 3rd licence. That application awaits the outcome of this appeal.
Appeal
This appeal is against the Decision. The outcome sought is for the trainee licence not to be revoked. The Registrar has provided a response dated 13 August 2025.
The Appellant's case
Our understanding of the incident itself derives from the Appellant's written submissions, what he said at the appeal, hearing from Mrs Fernando and reading her letter of 14 March 2025.
Mrs Fernando was a very new learner driver. The Appellant was teaching her how to drive and follow a route using satnav which is part of the driving test. The Appellant was not using a built in satnav but using the maps function on his mobile phone which was mounted by a suction pad onto the windscreen. He provided evidence that it was not being used as a telephone. The route took them to a roundabout followed by a series of traffic lights. Mrs Fernando said she was finding driving and following the map difficult.
It was not entirely clear what then happened but it appears that Mrs Fernando had to stop very suddenly at a red light. She says in her letter that the Appellant's mobile phone was in the centre of the car (although it may have been towards the left hand side) and the force of the stop made it fall out of its mount and land under the Appellant's dual-control foot pedals. At the appeal she told us that she did not see it fall nor what followed as she was focused on driving.
The Appellant says that he considered the device being on the floor under the dual-control footbrake to be a safety risk. He said that while the car was still stationary he picked it up. He said:-
"This was not a case of distracted driving as I was not using the phone for communication, texting or any interactive function. The incident was solely the result of an unforeseen hazard that required immediate action to maintain safety."
The Appellant said in his letter that as he picked up the mobile, it was still active displaying the satnav function and "A police officer approached from behind and instructed me to pull into an Aldi car park." We could not see how this could have occurred as described and the Appellant at the appeal said that the police vehicle drew alongside to the left. We found the evidence about how the police saw the mobile being picked up and communicated about going to Aldi hard to follow. Mrs Fernando said she did not realise at this point that the police were involved but was directed to drive to the car park by the Appellant. In any event the police and the Appellant then had a discussion in the car park. The Appellant says that he explained what had occurred. Ultimately this incident led to the issue of a Notice of Intended Prosecution and the acceptance by him of the penalty points.
Other issues raised by the Appellant included these:-
he referred to his openness, integrity, professionalism and work ethic.
he told us of his character and regret about the incident. He listed the lessons he had learnt including not using a mounted phone-holder and his commitment to engaging in continuous education.
he said that the loss of the licence would have severe personal and financial consequences such as the loss of investment in training, unemployment and a resultant inability to support his family. He said that his current career is "... a crucial part of my identity and well-being."
he has continued to teach learner drivers while awaiting the outcome of the appeal.
The Appellant cited section 19 Equality Act 2010, Article 8 of the ECHR, two criminal court cases DPP-v- Barreto [2019] EWHC 2044 (admin) and R-v- Spurgeon (2018) and similar cases that have resulted in instructors remaining on the Register.
The bundle contained many positive references in addition to what was said by Mrs Fernando. For example only:-
we were provided with about 25 screen shots of positive comments about the Appellant as an instructor.
a representative from Drive4Pass, with whom the Appellant has been working, said the Appellant:-
"is a trustworthy and responsible individual who takes his role as a driving instructor very seriously. His commitment to upholding high standards of safety and professionalism makes him a valuable member of our team".
a pupil said (on 20 March 2025) "I also greatly appreciate that he never uses his mobile phone during lessons"
another pupil said (on 13 March 2025) "He always kept his phone away during lessons..."
another on 20 March 2025 said "..he has maintained a strong focus on safety, never using his phone..." and again on 11 March 2025 a pupil wrote "notably, he made sure that mobile phones were never used during lessons..."
We also noted what was said by the Appellant's wife in her letter of 17 March 2025 who, as well as referring to his ability to speak multiple languages, also said that he never uses his mobile phone when driving. She ended by saying:-
"I truly believe my husband...is a fit and proper person to carry on this journey. He takes great pride in his work, acts with professionalism and integrity and genuinely makes a positive impact on the people he teaches and the wider community, since coming into this field whist working towards his final part 3 test".
Summary of the Registrar's position
Having considered the Appellant's explanation for how the points were incurred the Registrar said that:-
ADIs and those aspiring to be ADIs are expected to have higher standards than ordinary motorists and they need to have a keen regard for road safety but that this offence does not display the level of responsibility needed.
the Appellant did not seek to explain any mitigation in court but accepted 6 penalty points.
use of a mobile phone had contributed towards 17 deaths, 119 serious injuries and 308 minor injuries in 2020.
such offences cannot be condoned by the Registrar as that would "effectively sanction such behaviour..."
to allow the Appellant to continue would undermine confidence in the Register.
The Registrar also, at the appeal, indicated that he did not accept that the need for the mobile phone to be picked up from under the footbrake was urgent as the average device is just a few millimetres in depth and the footbrake does not need to travel to the floor to be effective. He also said that the Appellant should have left it where it was and remained focused on the actions of the pupil driver and the road before finding a safe place to stop and pick up the device. It was also clear that use of a mobile phone's map function as a satnav was not recommended by the Registrar for a driver as for example its other functions risked driver distraction.
Tribunal's review
We considered all the circumstances presented to us. Our role is defined by the Act and in the relevant legal authorities such as Harris and Hope and Glory. Our starting point is therefore to consider and give due regard to the view of, and the Decision made, by the Registrar.
The Appellant is not an ADI. However ADIs and those training to become an ADI are held to a higher standard than ordinary drivers. We accept the Registrar's position in particular noting the harm caused by any use of a mobile device. The public expects the Registrar to work to ensure ADIs are FPP in the wider Harris sense and has the right to expect them to adhere to the highest standards of motoring. It is right for the Registrar to be concerned about a person with 6 points potentially being on the Register and/or giving paid instruction as the holder of a licence. We also noted the 1986 Regs about mobile phone use and the content of the Guidance and the Code on the use of a mobile phone and FPP status.
We took note of what the Appellant said about his honesty and transparency, his commitment to continued professional development and steps taken to ensure the incident does not occur again.
Although we were sympathetic to the potential personal issues raised we did not give much weight to these because the Registrar's need to maintain the integrity of and public trust in the Register is likely always to be greater than the needs of an individual appellant.
We were sympathetic to the submissions made by the Appellant about the financial impact if he were not able to continue as a trainee (although he is not yet an ADI). This is something we expect would be of concern to almost all in this situation. However in our view, while we review all the circumstances and have taken it into account, we do not consider the likely financial impact to be a particularly impactful consideration for a decision about whether a trainee ADI is a FPP. Again the need to maintain the integrity of and public trust in the Register is likely always to be greater than the needs of an individual appellant and we gave this point little weight.
The references were useful and we accept that he is considered to be a good technical potential instructor. Many stated that he did not use a mobile. However, whatever occurred that caused the points to be given was seen by the police who issued a Notice of Intended Prosecution. It was always open to the Appellant to go to court to present his own case, challenge the police evidence and put forward any mitigation. However, he did not do so but instead accepted the 6 penalty points.
The Appellant raised a number of legal points:-
in Barreto the court considered section 41D of the Act and what regulation 110 of the 1986 Regs then said about mobile phone use and driving as at the date of that alleged offence in August 2017. However the 1986 Regs have been updated since Barreto was decided by, for example only, the addition in 2022 of clarity that "using" a mobile includedilluminating the screen and accessing an application. Additionally such submissions might have been relevant as part of any defence of a prosecution in a criminal court but not when considering whether the Registrar was right to challenge the FPP status of a trainee ADI.
the case of R-v-Spurgeon is said to be authority for there being a possible need for drivers to take immediate action in response to unexpected hazards. No copy or citation could be provided and it was not located. However, we accept that reg 110(5) of the 1986 Regs states:-
A person does not contravene a provision of this regulation if, at the time of the alleged contravention—
(a)he is using the telephone or other device to call the police, fire, ambulance or other emergency service on 112 or 999;
(b)he is acting in response to a genuine emergency; and
(c)it is unsafe or impracticable for him to cease driving in order to make the call (or, in the case of an alleged contravention of paragraph (3)(b), for the provisional licence holder to cease driving while the call was being made).
Such questions are principally for a court dealing with any prosecution but, in any event, we accept what the Registrar says about the phone being under the footbrake and so we did not conclude that reg 110(5) would have provided a defence in the situation as described to us.
Article 8 of the European Convention on Human Rights as incorporated into UK law by The Human Rights Act 1988 says:-
Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. "
Even if the Registrar's decision operates as a potential interference with his Article 8 rights (which we did not conclude) the relevant parts of the Act and the maintenance of the Register and other responsibilities of the Registrar exist to ensure that only those who are FPP can be trainee ADIs and then ADIs which is for public safety and to protect others. This did not add weight to his appeal.
in his letter the Appellant referred to the indirect discrimination provisions of section 19 Equality Act 2010 and said that this states that "...decisions must not disproportionately disadvantage an individual unless there is a strong justification". However the Appellant did not claim any "relevant protected characteristic" and this point was not therefore considered further.
The Appellant referred to other cases where use of a mobile and 6 points did not result in the revocation of a licence. While he did not cite any we accept that there are many First-tier Tribunal cases where an appellant with 6 penalty points wins their appeal and also where an appellant with 6 penalty points loses their appeal. Such cases are not binding on us as legal precedents and each case is specific on its facts.
Decision
The Appellant accepted 6 penalty points for mobile phone use while supervising a pupil. Having considered what was said by both parties and the witness and others he has not persuaded us that the Registrar’s decision was wrong. Accordingly the appeal is dismissed.
Signed Judge Heald Date: 24 October 2025.