Rajeethar Thillaimohan v Registrar of Approved Driving Instructors

The hearing was conducted by a three-Member Tribunal, comprising a Tribunal Judge and two specialist Members. Two other, newly-appointed, salaried Tribunal Judges were present, in an observer capacity only, but took no part in the determination of this appeal.

The proceedings were listed for oral hearing, remotely, by CVP and proceeded in that mode.

The Appellant failed the Standards Check test, required by the Respondent to be undertaken by the Appellant, on three separate consecutive occasions, namely, 12 May 2023; 23 August 2023 and 15 May 2024, pursuant to the provisions of the Motor Cars (Driving Instruction) Regulations 2005. The Respondent made a decision dated 4 July 2024 to remove the Appellant’s name, in consequence, from the Approved Driving Instructors Register (‘ADI Register’), pursuant to s.128(2)(d) of the Road Traffic Act 1988, as amended (‘the Act’), taking into account representations made by the Appellant in two emails dated 9 June 2024.

While there is no statutory obligation on the Respondent to require an ADI to undertake more than one Standards Check test, its standard practice is to allow an ADI up to three attempts to pass such test of his continued ability and fitness to give driving instruction (albeit in the most exceptional circumstances, an ADI has been afforded a fourth attempt). In other words, the Respondent would have been perfectly entitled in law to make a decision to remove the Appellant’s name from the Register upon him failing even the first Standards Check test.

The Appellant was given advice by the examiner, on each of the first two occasions when he failed his Standards Check test, in a de-brief, that was also reduced to writing, to consider further personal development and was urged in advance of his third attempt, on 15 May 2024, carried out by a different examiner to take account of those previous advices.

The Appellant’s overall performance was again, in his third attempt, on 15 May 2024, found to bebelow the required standard as in his previous two attempts.

The Appellant, in his said representations, disputed the findings of the examiner, but only in respect of his failing his Standards Check test on the first two occasions. He, essentially, cast doubt on the examiner’s ability to conduct such examinations but advised that he had undertaken further training. He made a formal complaint against that examiner that had been investigated by the Respondent’s investigatory team but not upheld.

If the Appellant wished to challenge the conduct or outcome of any of the three Standards Check tests, he had a statutory remedy to challenge those matters by way of an appeal to the Magistrates’ Court: the Tribunal, in determining this appeal, had no jurisdiction in that regard. The Appellant did not bring any such appeal.

The Appellant submitted a Notice of Appeal dated 24 July 2024. Essentially, as in his said representations to the Respondent, again disputed the conduct and outcome of the first and second Standards Check tests, something, again, over which the Tribunal had no jurisdiction. He also submitted that removal of his name from the ADI Register was excessive.

In his oral evidence, the Appellant stated that he stood over the contents of his representations to the Respondent; the contents of his grounds of appeal and the contents of his witness statement. He stated he had been an ADI for 12 years; that he had taught over 500 pupils and never had received any complaints nor had any professional conduct issues and had received positive comments. He confirmed that the School of Motoring referred to on page 21 of the bundle was owned by him and that he had never engaged with another company. The Appellant initially stated that there was particular issue leading to his first cancellation of a booked Standards Check test, but then stated he had wished to practise more, which he did, with a former examiner, for 20 hours, in 1.5 – 2-hour sessions. He stated he had continued further training after the failed test on 23 August 2023, taking advice from the de-briefing document, as the reason he had first cancelled a test date, while his being unwell was the reason he cancelled a second booked test date. The Appellant went to reiterate his dispute, that arose during his second Standards Check test concerning a fuel station incident, that is, disputing the conduct of the test by the examiner. Significantly, he stated that he had nothing to learn from his failed tests as he had no shortcomings. He confirmed that he had received a feedback sheet from the examiner after each failed test but maintained that no advice or guidance had been given to him after any of the three failed tests. However, he stated he would find a good trainer. The Appellant confirmed he had lodged a complaint against the examiner after his second test failure; that he did not know of the option to appeal the outcome and conduct of the test to the Magistrates’ Court and confirmed that he was not happy with the conduct and outcome of his first and second tests. He strongly queried why, having previously passed two Standards Check tests (in 2013 and 2016, respectively), he should have failed his last three, separate consecutive Standards Check tests.

The Respondent’s representative had no questions for the Appellant.

The Appellant’s representative accepted that the Tribunal had no jurisdiction to enquire into the reasons why the Appellant had failed a Standards Check test (on three separate consecutive occasions in this case), but submitted that the decision under appeal should not have been made on that basis rather than the Respondent making a decision having regard to the Appellant’s driving instructional history, he having a good record, as shown in the review at page 25 of the bundle and that he had been positively endorsed by pupils. He submitted that the Appellant should have been offered a fourth test; that the decision was not proportionate and had a significant impact on his livelihood; that he had taken further training after his first attempt at a Standards Check test and that while the burden of proof was on the Appellant, he was a fit and proper person to have his name remain on the Register.

In its Response, dated 10 October 2024, the Respondent confirmed that the Appellant’s name had first been entered onto the Register in November 2012 and would, ordinarily, have expired on 30 November 2028. It confirmed that an ADI could be required to undergo a Standards Check when requested by the Respondent and while an ADI was only obliged to undertake one test, it was to the practice of the Respondent was to allow up to three attempts to pass the test. It confirmed, too, that the Appellant had failed a Standards Check test on three separate consecutive occasions; that the Appellant had been notified of his failings in a de-brief after each test and advised each time to consider further personal development. He was again advised of the failings found in his first two tests in advance of him undertaking his third, again unsuccessful, attempt on 15 May 2024. It confirmed that, despite the Appellant cancelling two dates for his third attempt, an alternative date was offered on each occasion. The Respondent stated that it could not ignore the fact that the Appellant had failed a Standards Check test on three separate consecutive occasions and that he had been advised of his shortcomings after the first two failed attempts to allow him an opportunity to improve his driving instructional standard. Since he had cancelled a date for his third attempt on two occasions, the Appellant, in fact, gained a further six months to reach the minimum required standard but failed again, on his third attempt. The Respondent submitted in its Response that the Appellant’s name had to be removed from the Register in the interests of road safety and consumer protection as he had been unable to satisfy the Respondent that his driving instructional ability was of a satisfactory standard as he had failed, despite three attempts, to maintain the driving instructional ability standards required of an ADI.

In oral submissions the Respondent’s representative confirmed that the Appellant could have appealed the conduct and outcome of any of his Standards Check tests to the Magistrates’ Court, but, instead, had made a complaint, but only in respect of the first two Standards Check tests, but not the third test, and that the Appellant had been given a number of opportunities to meet the required standards and make representations. He confirmed that the Appellant had passed a required Standards Check test in 2013 and 2016 on his first attempt. He confirmed that the ‘warning letter’ in respect of the intended decision had been sent to the Appellant within 2.5 hours of him failing his third attempt at a Standards Check test.

The Respondent’s representative confirmed that he had no personal involvement in the Appellant’s case. In respect of the discretionary power in s. 128 (1) of the Act, particularly in light of the Appellant’s long history as an ADI, the Respondent’s representative emphasised that only one attempt at passing a Standards Check test was, strictly-speaking, required, but three had been permitted, giving the Appellant an opportunity to discuss matters with, for example, another ADI and make representations to the Respondent. He submitted that, in this case, the Appellant did not seem to appreciate the purpose of being required to undertake a Standards Check test, the focus of his representations being on the alleged conduct of the first two Standards Check tests by the examiner. He confirmed that the representations made by the Appellant were considered in advance of the decision under appeal being made; that account had been taken of the Appellant’s driving instructional history as a whole; that a fair and reasonable opportunity had been given to the Appellant to pass a required Standards Check test. Of the three options open to the Respondent, its representative submitted that these were: to remove the Appellant’s name from the Register; take no further action (despite him failing a Standards Check test on three separate consecutive occasions) or to allow him to make a fourth attempt at passing the test (a step deemed not to be appropriate in this case).

The decision by the Respondent to remove the Appellant’s name from the ADI Register pursuant to s.128(2)(d) of the Road Traffic Act 1988 (‘the Act’) in that he had failed the continued ability and fitness test (known as a ‘Standards Check test’) on
three separate, consecutive occasions, was, undoubtedly, correct as a factual proposition. The Tribunal agreed with the Respondent’s rationale, as set out in preceding paragraphs, in arriving at that conclusion.

S.125(5) of the Act requires that a person whose name is held in the Register
must undergo a test of continued ability and fitness to give instruction in the driving
of motor cars. Although the Act permits removal of a name after a single failure of a
check test, it is usual for an ADI to be allowed three attempts before removal is
ordered. By reason of the word “may” in s.128(1) of the Act, removal from the ADI Register is discretionary.

Significantly, pursuant to s.133(1) of the Act, an appeal against the conduct of a Standards Check test lies to a Magistrates’ Court – not to the Tribunal.The Appellant accepted that he did not appeal the outcome of any of his attempts at the Standards Check tests.

The Tribunal does not have jurisdiction to decide whether the Respondent’s decision to exercise their discretion to remove the Appellant’s name from the ADI Register was correct. The principal way that issue is addressed is by requiring that those who give paid instruction havetheir name on the ADI Register kept by the Respondent. In order thatthe public can have confidence in the ADI Register, Parliament has put otherprovisions in place. For example there is a pre-condition to registration that anapplicant has passed all three parts of the qualifying examination, there is arequirement that the applicant is and remains a ‘fit and proper person’ to have hisname 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 ADI Register shall be subject to thecondition that, so long as his name is on the ADI Register, he will, if at any timerequired to do so by the Registrar, submit himself for such test of continuedability and fitness to give instruction in the driving of motor cars as may be
prescribed. The importance of this provision is that it ensures, by periodictesting, that driving instructors remain sufficiently competent to charge forinstruction. It is therefore an important component in maintaining publicconfidence in the Register. It is important to note that the imposition of thecondition is mandatory and that the terms of the condition are that the Approved Driving Instructor (‘ADI’) will,at any time required to do so by the Respondent, submit himself for a Standards Check test.

The Tribunal was satisfied that the Respondent was correct to find that the Appellant had been givenadequate opportunity to pass the Standards Check test but had failed to do so – on three separate consecutive occasions The Respondent was correct to remove the name of the Appellant from the Register due to his inability tosatisfy the Registrar that his continued ability to provide driving instruction was to the requiredstandard.

The Appellant was provided withguidance andadvice, following his first two failed Standards Check examinations, on how he might improve his standards before undergoing afurther test. Despite this, the Appellant failed to achievethe required standard on three separate consecutive occasions.

Most of the submissions made in the Appellant’s written representations to the
Registrar, replicated in his Notice of Appeal, concerned him criticising the conduct of the third Standards Check test by the examiner. However, as was noted in paragraph 12 above, pursuant to s.133(1) of the Act, an appeal against the conduct of a check test lies to a Magistrates’ Court and, pursuant to s.133(3), no such appeal may be made to the Tribunal under s.131 of the Act.Accordingly, the Tribunal does not have jurisdiction to consider such submissions.

The Tribunal is a judicial authority, entirely independent of both the Appellant and the Respondent. When an appeal comes before a Tribunal, the Tribunal considers the matter the subject of the appeal entirely afresh while having regard to the views expressed by the Respondent as the body with entrusted by Parliament in respect of these matters.

The appealis dismissed with immediate effect.