Case Reference: FT/D/2024/0613
Transport
Heard by CVP
Before
DISTRICT JUDGE REBECCA WORTH
(authorised to sit as a Tribunal Judge in the GRC)
Between
SALIM ABDUL NAMAJEE
Appellant
and
REGISTRAR FOR APPROVED DRIVING INSTRUCTORS
Respondent
Representation:
For the Appellant as a litigant in person
For the Respondent Darren Russell
Decision: The appeal is DISMISSED
Definitions: “the Act” The Road Traffic Act 1988
“ADI” Approved Driving Instructor
“ADI Registrar” The Registrar of Approved Driving Instructors
“Check Test” The test of continued ability and fitness to give instruction required under section 125(5) of the Act
“DVSA” The Driver and Vehicles Licensing Agency
“the Register” The Register of Approved Driving Instructors
REASONS
Mode of Hearing
The Tribunal considered the 29-page bundle provided to it and Salim Namajee’s submissions, which appear to be grounds of appeal sent with his Notice of Appeal.
The proceedings were held using Cloud Video Platform (“CVP”). The Tribunal was considered it was fair and just to conduct the hearing in this way.
The Law
Section 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 instructor to be allowed three attempts before removal is ordered. By reason of the word “may” in section 128(1) of the Act, removal is discretionary. The third attempt at a check test is usually conducted by a different and more senior examiner.
By section 133(1) of the Act an appeal against the conduct of a check test lies to the magistrates or a sheriff; and by section 133(3) no such appeal may be made to the Tribunal under section 131 of the Act. It is, of course, the latter which founds the Tribunal’s jurisdiction.
At paragraph 32 of D.2010.322 E. Edis, Upper Tribunal Judge Broderick said the following:
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.131 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 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 is 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 which permits the ADI to impose his own pre-conditions to submitting himself for a check test.
When making its Decision, the Tribunal stands in the shoes of the ADI Registrar and takes a fresh decision on the evidence available to it, giving appropriate weight to the ADI Registrar’s decision as the person tasked by Parliament with making such decisions (Footnote: 1). The burden of proof in satisfying the Tribunal that the ADI Registrar’s decision was wrong rests with the Appellant.
Background – as relevant to this appeal
Salim Namajee’s name was entered on the Register in October 2004; that registration lapsed. Mr Namajee was re-registered in May 2010. Mr Namajee was then required to undergo a Check Test with an appointment booked for 17 February 2020, he failed that test. Further tests were booked and failed on 28 April 2021 and 02 February 2023; in addition a test was booked for 14 December 2021 (having been postponed from 05 October 2021), Mr Namajee did not attend the test on 14 December 2021, the ADI Registrar did not seek to remove Mr Namajee from the Register on the basis of his failure to attend the check test on 14 December 2021. DVSA’s procedure for using a different Examiner on the third test was followed.
Mr Namajee did not lodge proceedings in the Magistrates Court to challenge the conduct of any of the Check Tests and confirmed in the hearing that he took no issue with the outcome of the tests.
By letter dated 08 February 2023 the ADI Registrar informed Mr Namajee that he was considering removing Mr Namajee from the Register and invited Mr Namajee to make representations. Representations were received and considered.
By letter dated 22 March 2023 the Registrar informed Mr Namajee that he was removing Mr Namajee from the Register; Mr Namajee appealed that decision to this Tribunal.
Appeal to the Tribunal
Mr Namajee appealed to this Tribunal in a Notice of Appeal Form dated 19 April 2023. It is unclear why it has taken such a long time (over 2 years) for the appeal to be heard by the Tribunal.
Mr Namajee’s written grounds of appeal are:
Article 8 of the European Convention on Human Rights (ECHR) applies as removal of his ADI Registration will directly interfere with his ability to earn a livelihood, which will impact his private and family life. Article 1 of Protocol 1 of the ECHR protects him from being deprived of his professional licence.
Exceptional personal circumstances, namely:
Personal health issues, affecting his ability to concentrate and prepare adequately for his check tests.
His Mother has been battling cancer, placing additional emotional and caregiving burdens on him.
COVID-19 restrictions and lockdowns significantly hindered his ability to prepare, access professional training and maintain his standard of instruction.
Procedural fairness and legitimate expectation, the ADI Registrar did not take into account the particular circumstances of Salim Namajee.
The decision is (in the Wednesbury sense) unreasonable as no reasonable authority could have made that decision in the given circumstances. He should have been given the opportunity for further training, mentoring or re-examination as his livelihood was at stake.
He should have been given reasonable adjustments if his health issues (or those of his Mother) fell within a protected characteristic under Section 149 of the Equality Act 2010.
The ADI Registrar, in his Response dated 17 January 2025, resisted the appeal on the grounds:
On no less than 3 occasions, Salim Namajee undertook a Check Test but failed each time to reach the required standard.
Following each of the first 2 tests, Salim Namajee was given feedback to enable him to improve his standard but still he failed to reach the required standard.
Whilst the ADI Registrar has sympathy with the family circumstances faced by Salim Namajee, he has been given adequate opportunity to pass the test but has failed to do so.
In the interests of road safety and consumer protection, Salim Namajee’s name should be removed from the Register.
The Hearing
At the hearing, I heard from Mr Namajee and asked questions about his grounds of appeal. He confirmed the grounds he relied on and made submissions that he had no issue with the outcome of the check tests, but considered that, due to his personal circumstances, he should be given further opportunity to re-train and pass the test, rather than lose his registration.
I asked Mr Namajee to specify the “protected characteristic” that he believes should have caused reasonable adjustments. He mentioned his health and that of his Mother, but accepted that, during the process of doing the check tests, he had not notified DVSA of any disability (as defined in the Equality Act 2010) and had not asked for any reasonable adjustment. The reasonable adjustment he now sought was for a further opportunity for training and check testing. Mr Namajee did not file any medical evidence from which the Tribunal could make a finding that he has a protected characteristic under the Equality Act 2010; his Mother’s diagnosis does not grant him the status of a person with a protected characteristic.
I asked further questions to clarify his case, including asking him to explain how COVID-19 affected him at times other than from March to the end of 2020 which was the year of the first lockdowns. He accepted that the first test was before COVID-19 really hit the UK, but explained that it was difficult, during that time (i.e. “during covid”), to get training for the check test and he prefers to have in person training, so had not looked to see if there were useful resources on YouTube or other such platforms.
I invited Mr Namajee to make representations about why he was saying that the interference in his Article 8 Rights by the ADI Registrar (on behalf of the state) was unreasonable or not proportionate. He relied on his personal circumstances making it unreasonable to take away his livelihood.
Once I had concluded the hearing, explaining that my decision would be sent to Mr Namajee in the next (I expected) couple of weeks, Mr Russell spoke up on behalf of the ADI Registrar, asking if I was aware that he was in the hearing and had been since about 5 minutes after the hearing had begun. Until that moment, I had not been aware. Mr Namajee had, by that point, hung up and he was not able to be contacted to rejoin the hearing. In the circumstances, I asked Mr Russell to confirm if the appeal is still opposed (it is) and did not invite further submissions.
Overall, I consider that the hearing was fair and just in the circumstances.
Discussion and reasons for decision
I will consider the grounds of appeal as set out above.
Article 8 Protections:
An Article 8 Right can be interfered with if it is reasonable and proportionate to do so. I note the ADI Registrar’s response (at (d) on the final page of that response) where he states: “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”.
I find that, if he is unable to continue to be paid for giving driving tuition, there will be an interference in Mr Namajee’s Article 8 Rights. However, I also find that the interference in Mr Namajee’s Article 8 Rights must be balanced against the Rights of others (e.g. other road users and potential pupils). Mr Namajee was given 3 full opportunities to show his competence and was unable to do so; those opportunities were over a lengthy period of time. Further, DVSA did not, it appears, count the failure to attend on 14 December 2021 as a failed test, but gave him a further two opportunities in 2021 and 2023 to show his competence. Therefore, any interference in Mr Namajee’s Article 8 rights is both reasonable and proportionate as he has been given plenty of opportunity to demonstrate his level of competence.
This ground, therefore, fails.
Exceptional personal circumstances:
I will consider these together. Whilst the circumstances have not been supported by evidence, I accept that the circumstances are as described by Mr Namajee. Mr Namajee, and his family, have the Tribunal’s sympathy with the very difficult personal circumstances that he has faced over a number of years.
It would have been open to him to ask the ADI Registrar or DVSA to take those into account, if he had believed that he was not going to be able to demonstrate competence at teaching. By accepting the check tests and not asking for them to be re-booked, it appears that Mr Namajee fully believed that his teaching was to the standard expected by DVSA.
Overall, this ground fails.
COVID-19:
I do not accept his blanket reliance on COVID-19 because the first test he failed (February 2020) was before the UK went into any lockdowns and, whilst people were worried about what was going on elsewhere in the world, there was not, at that time, a direct impact on UK. I understand that, during lockdowns, the ability to instruct in driving and the ability to take training for check tests was limited. However, the next check test was in April 2021, so at a time when the country was back to some sort of normality; Mr Namajee had the opportunity, by that time, to seek additional advice, training, mentoring and whatever else he needed to be able to meet the DVSA standard for being an ADI.
Further, Mr Namajee’s test in February 2023 cannot reasonably be considered to have been affected by COVID-19, at least not without specific information as to why that happened almost 3 years after the first lockdown and once the UK was living with the aftermath of COVID-19.
This ground, therefore, fails.
Procedural fairness:
Mr Namajee is quite convinced that the ADI Registrar did not take his personal circumstances into account. I do not find that Mr Namajee has persuaded me, on evidence, of that assertion. However, I stand in the shoes of the Regulator when making this decision and Mr Namajee has now had the time to fully argue his case, in grounds of appeal and at the hearing. Any perceived unfairness of the original decision is dealt with by the fresh hearing approach.
This ground, therefore, fails.
Equality Act 2010 and request for further training, mentoring and re-examination:
I cannot, on the evidence before me, find that Mr Namajee has a protected characteristic as defined in the Equality Act 2010.
It seems to me to be unfair for the Tribunal to expect the ADI Registrar to know what is going on with each of its ADIs. If Mr Namajee believed that he had a protected characteristic, it was his duty to inform the ADI Registrar of that. If the ADI Registrar had been informed of a protected characteristic, then the duty to make reasonable adjustments would have been in place and I would expect reasonable adjustments to be made. Until the ADI Registrar is notified of a protected characteristic, they are entitled to use their standard processes and procedures as are used for all ADIs.
The purpose of the argument as used within this appeal is that Mr Namajee wants to be given further training, mentoring and testing. That would not be a reasonable adjustment as such was available to him during the course of 2021, 2022 and 2023, if he had a protected characteristic when he knew that he was failing check tests. It is regrettable that, in Mr Namajee’s submission, he was not the right frame of mind to keep on top of what was required; however, it was his obligation as an ADI to ensure that he was keeping to the standard expected of DVSA and the ADI Registrar.
this ground, therefore, fails.
For all the above reasons, the appeal is dismissed.
Signed Judge Worth Date: 25 July 2025
