Stacey Louise Bonner v The Driver & Vehicle Standards Agency

This appeal concerns a decision of the Driver and Vehicle Standards Agency’s Registrar of Approved Driving Instructors (the “Registrar”) made on 7 March 2024 to remove the Appellant from the Register of Approved Driving Instructors (the “Register”) on the basis that she failed to meet a condition of continued registration, namely that she refused to attend a test of continued ability and fitness to give instruction. The Registrar came to this conclusion as he regarded the failures to attend such a test on three separate dates as refusals to undergo the test, as required by s.125(5) of the Road Traffic Act 1988 (‘the Act’).

The proceedings were held by video (CVP). The Appellant and her counsel joined remotely. 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 28 March 2024 submits, in summary, that the Appellant did not refuse to undergo the standards check test in relation to any of the three dates relied upon by the Registrar. That there were other intervening reasons that meant those checks did not take place but she did not at any time refuse to undergo those tests. The notice continues to state that the Appellant is willing to undergo a standards check and the Respondent is requested to give her another opportunity to sit one. It is additionally submitted that the Respondent’s actions in not considering the Applicant’s previous representations and proceeding with removing her from the Register are disproportionate and unfair in the circumstances. Accordingly, the notice argues that the Appellant’s name should not be removed from the Register.

The Appellant has also indicated that she has been an ADI for over 10 years and last passed a standards check in 2019, with no issues prior or since then to indicate any problem with her standards and competency. She specialises in teaching learner drivers with disabilities and is the only ADI in the area that does teach such students.

The Registrar’s Statement dated 21 January 2025 resists the appeal. In summary, the Registrar contends that the Appellant failed to make herself available on 3 occasions to undergo a test of continued ability and fitness to give instruction. These were on 11 July 2022, the 28 November 2022 and the 22 June 2023.

On the 12 January 2024 the Registrar informed the Appellant they were considering removing her name from the Register on the grounds that the Appellant did not attend the test of continued ability and fitness to give instruction and so regards the repeated failure to do so as a refusal to undergo that test. The appellant was given the opportunity to make representations about the proposed removal and the failure to undergo the test.

On the 5 February 2024 the Appellant made representations to the Registrar the details of which are set out in the bundle.

On the 7 March 2024 the Registrar gave formal notice that having considered the representations made by the Appellant, they remained satisfied that the Appellant’s name should be removed from the register because the Registrar regarded the Appellant’s failure on three separate dates as a refusal to undergo the test.

The Registrar’s response to the appeal notice indicates that the Registrar takes the view that the appeal should be dismissed, and that the Appellant was removed because she failed to attend the relevant tests on 3 occasions. So, despite being given ample opportunity to attend and pass this test she failed to do so, the Registrar felt obliged to remove her name from the register. In the view of the Registrar the representations of the Appellant failed to provide any evidence to substantiate her inability to attend. Therefore, in the interests of road safety and consumer protection, the Registrar removed her name because she had been unable to satisfy him that her ability to give driving instruction was of a satisfactory standard.

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

Where an Approved Driving Instructor refuses to undergo a test of continued fitness and ability or fails such a test, the Registrar may remove that person from the Register under section 128(2) (c) or (d) of the Act. Although the Act only requires one test, it is the Registrar’s normal practice to allow three attempts to reach the required standard.

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 71 pages.

This includes:

The Registrar relied on the contents of their written submissions.

At the remote hearing, the Appellant repeated the essence of her written grounds of appeal and adopted the contents of her statement. She also answered additional questions from her Counsel and the Tribunal. She was sincere, open about mistakes made, engaging and credible.

As regards the 11 July 2022 date:

In relation to the proposed test on 28 November 2022:

The Registrar notified the Appellant that a third test date was set for the 23 March 2023. However, on the 22 March 2023 the Registrar cancelled the test due to examiners’ strike action.

Finally, as regards the 22 June 2023 test date:

I have considered carefully all the evidence and submissions in this appeal.

The Appellant has clearly failed to adopt an approach commensurate to the seriousness of the standards check process or even to the twin factors of the importance of retaining her licence as her family’s main source of income and the continuance of the valuable and unique service she provides to vulnerable disabled learner drivers.

Her failure to carefully scrutinise the exact requirements for a standards check led to the first missed test that could have been avoided.

Her failure to effectively manage her email inbox and keep an accurate diary led to the second test date failure. That said the Registrar is not immune from criticism in this regard either, given the serial process failures by the Registrar in this case (both prior to and especially after this appeal was initiated).

Whilst the motivation of the Appellant as regards the reasoning for missing the test in June 2023 is understandable, it was also incredibly reckless. Both in the context of simply choosing to not confirm the strike cancellation she believed applied (or even to contact the Registrar to seek to alter or postpone one or other of the tests) as well as in the specific context here where the Appellant knew there had been two previous test dates she had failed to attend.

In considering afresh whether the decision to remove the Appellant from the Register was correct, I bear in mind the significant importance which attaches to the integrity of the Register. Entry onto and remaining on the Register is a public endorsement of a high standard of competence on the part of the Registrar. For the public to have trust in it the Register must show integrity and 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 in the Register. This is a matter of wider public interest which attract significant weight, even if removal from the Register has consequences for an individual.

Taking all of these factors into account, and having considered all the facts and circumstances of this case. I have concluded that the Appellant did not “refuse” to undergo the required standards check. The requirement in law is clear that a failure to attend is not alone sufficient, it must be a “refusal” and so a degree of intention is required above and beyond the simple fact that an individual did not attend a test. Sometimes that additional element may be inferred by the context or the lack of contrary evidence, particularly where there are multiple missed tests. However, on balance, the evidence in this case taken in the round does not support the conclusion that the failures to attend were evidence of a refusal to undergo the test.

It must be said that this was an incredibly finely balanced decision and but for the particularly credible, self-conscious, compelling and open testimony of the Appellant today the outcome of this appeal would likely be very different. Consequently, under no circumstances should this be seen as any kind of endorsement of the Appellant’s approach to this matter (which must never be repeated) and the particular personal/other circumstances in this case are definitely exceptional.

The Appellant remains liable to be subjected to a standards check and I suspect that in order to uphold the wider public interests of the register, such a check may take place in the near future. At which point the Appellant can demonstrate her emphatically stated willingness to undergo the check without further delay, or otherwise likely face the inevitable conclusions being drawn.

I therefore allow this appeal.