Peter John Scholes v Registrar of Approved Driving Instructors

This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made on 5 July 2024 to refuse to grant the Appellant a third trainee licence.

The Appellant is trainee driving instructor who was granted a trainee licence under section 129 of the Road Traffic Act 1988 (the “Act”), for two consecutive six-month periods, starting on 12 June 2023 and expiring on 11 June 2024. On 28 May 2024, the Appellant applied for a third licence. That application was refused by the Registrar on 5 July 2024. The Appellant now appeals the Registrar’s decision.

The proceedings were held by CVP with the Appellant joining remotely by telephone and confirming that he could clearly hear the Tribunal. The Registrar did not attend the remote hearing. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way.

The Appellant’s Notice of Appeal dated 18 July 2024 relies on the following grounds:

The Registrar’s Statement of Case dated 25 July 2024 resists the appeal. The Registrar says that:

The grant of a trainee licence enables applicants to provide instruction for payment before they are qualified. The circumstances in which trainee licences may be granted are set out in section 129 of the Act and the Motor Cars (Driving Instruction) Regulations 2005 (the “Regulations”).

A licence under section 129(1) of the Act is granted, “for the purpose of enabling a person to acquire practical experience in giving instruction in driving motor cars with a view to undergoing such part of the examination… as consists of a practical test of ability and fitness to instruct”.

In order to qualify as an Approved Driving Instructor, applicants must pass the Qualifying Examination. This is made up of: the written examination (Part 1); the driving ability and fitness test (Part 2); and the instructional ability and fitness test (Part 3). Three attempts are permitted at each part. The whole examination must be completed within two years of passing Part 1, otherwise the whole examination has to be retaken.

A candidate may be granted a trainee licence if they have passed Part 2. However, holding a trainee licence is not necessary in order to qualify as an Approved Driving Instructor, and many people qualify without having held a trainee licence.

The powers of the Tribunal in determining this appeal are set out in section 131 of the Act. The Tribunal may make such order as it thinks fit (section 131(3)). 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 proof in satisfying the Tribunal that the Registrar’s decision was wrong rests with the Appellant.

I have considered a bundle of evidence containing 22 numbered pages, together with a further email from the Appellant dated 7 January 2025 concerning the cancellation of an instructional ability test that same day. I also heard from the Appellant at the remote hearing.

At the remote hearing, the Appellant gave further details of why he had not been able to take his third Part 3 test by the date of his hearing. He explained that he really did not wish to have to apply for extensions but that he had been constantly frustrated by circumstances. His pupil for his planned test on 28 August 2024 pulled out shortly before and he was advised to delay the test with an appropriate student given that this was his final opportunity. He applied for a further test almost immediately, and gave a broad range of test areas, but again was put on hold and was then given a Part 3 test on 7 January 2025. This test however was cancelled through no fault on the part of the Appellant due to poor weather (snow). His test has been rescheduled for 3 April 2025.

In response to questions from the Tribunal, the Appellant said he had been advised by his driving school that he would still be able to take his Part 3 test on 3 April 2025, even though it would be more than two years since he had passed his Part 1 test on 28 February 2023. The Appellant was concerned about this position and said he would check it with the Registrar.

The Appellant emphasised that he was only in this position because two tests had had to be cancelled due to circumstances beyond his control and that he really had hoped that he would have had the opportunity to take his final Part 3 test by now but the length of time had been caused by substantial delays in tests being rebooked.

The Appellant has already had two trainee licence periods lasting for a year. As a result of this appeal, he has also had the benefit of the time which would have been covered by a third trainee licence as that licence would have expired on 11 December 2024. He is able to continue to gain experience and take the Part 3 test without a trainee licence. There is ordinarily no entitlement to be issued with continued licences until the test has been booked and passed. The public policy reasons for the issuance of a trainee licence relied on by the Registrar in his Response have considerable force. Consequently, I consider that the grant of a third trainee licence will ordinarily need to be justified by exceptional circumstances.

However, I do consider that on the specific facts of this case, there are exceptional reasons to grant such a licence. The Appellant’s undisputed evidence, which I accept, is that he has made very substantial attempts to book his third test which has now been twice cancelled through no fault of his own. He has also sought tests in a wide area, not just his immediate locality. There have also been very substantial delays in tests being made available to the Appellant which is not his fault. If there are substantial delays in test availability, that must be given proper account by the Registrar, where justified, in considering the extension of a trainee licence. It is not reasonable to expect trainee driving instructors to be able to obtain and maintain the necessary skills if they are unable to keep practising their instruction, which may need to include paid instruction in specific circumstances.

Therefore, I am satisfied that the Registrar was wrong in the particular circumstances of this case to refuse to issue the Appellant with a third trainee licence. The question then arises as to what the appropriate order is which should be made by the Tribunal under s.131(3) of the Act.

The first issue is whether the Tribunal has the power to issue a licence which would last longer than the six-month period originally sought by the Appellant. Neither party made any submissions on this issue and I am not aware of any appellate authority on the point. I am aware that the Tribunal has, on occasion, previously granted trainee licences for a period which in practice goes further than that which was originally sought by an Appellant – see for example Ahmed v Registrar of Approved Driving Instructors [2024] UKFTT 1004 (GRC) at [10], where a second trainee licence was granted with effect from the date of promulgation of the decision.

I consider that the terms of s.131(3) of the Act are expressed in broad terms. The Act permits the Tribunal to make such order on the “application” as it “thinks fit”. The statute therefore imposes no express limits on the grant of a trainee licence, but clearly the Tribunal is bound by public law rationality requirements as well as having regard to the statutory purpose for the grant of a trainee licence.

In these circumstances, I consider that one such limitation is that a trainee licence should not be issued beyond the date two years after a trainee driving instructor passed their Part 1 theory test. This reflects (a) the statutory requirement that trainee driving instructors pass the Part 3 test within two years of passing their Part 1 theory test and (b) the statutory purpose for granting a trainee licence is to permit them to gain relevant practical experience to allow them to pass the test of instructional ability. Granting a licence beyond this time period would therefore not accord with the statutory purpose for trainee licences.

In this case, the evidence shows that the Appellant passed his Part 1 theory test on 28 February 2023. He therefore must complete his Part 3 test of instructional ability by 28 February 2025. While he believes that he may be able to take his test in early April 2025 when it has been rescheduled for, he will need to consider with the Registrar whether this is indeed possible.

In all the circumstances, the Tribunal considers that the appeal should be allowed and that the fair and appropriate order to make is for the Appellant to be granted an extension of his trainee licence until and including 28 February 2025, that being two years from the date of his successful passing of the Part 1 test.