Case Reference: D/2025/0089
Transport
Before
TRIBUNAL JUDGE KENNETH MULLAN
Heard by way of remote hearing using Cloud Video Platform
Between
JOHN DAVID WARD
Appellant
and
REGISTRAR OF APPROVED DRIVING INSTRUCTORS
Respondent
Decision: The appeal is ALLOWED
REASONS
Mode of Hearing
The proceedings were held using CVP. The Tribunal was satisfied that it was fair and just to conduct the hearing this way.
The hearing was conducted by a Judge in Chambers. The Appellant participated in the hearing. The Registrar of Approved Driving Instructors was not represented.
Background
This appeal is from a trainee driving instructor who was granted two trainee licences under s.129 of the Road Traffic Act 1988 (“the Act”) and was then refused a further licence at the end of the twelve months’ period. A licence under s.129(1) 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”.
The circumstances in which trainee licences may be granted are set out in s.129 of the Act and in the Motor Cars (Driving Instruction) Regulations 2005 (“the Regulations”). In order to qualify as an approved driving instructor an applicant must pass the qualifying examination, which is in three parts: the written examination; the driving ability and fitness test; and the instructional ability and fitness test (see reg.3(2)). Each part must be passed in the stated order and before the next part is attempted. Three attempts at each part are permitted but the whole examination must be completed within two years of passing the written examination (but subject to reg.3(4)(c) which permits a further attempt at the Part Three test outside the period if the booking was made within it). Failure so to complete requires the whole examination to be retaken. A trainee licence may be granted under s.129 of the Act once the driving ability and fitness test has been passed. The holding of a trainee licence is not a prerequisite to qualification; on the contrary, many applicants qualify without having held such a licence.
It is self-evident that the grant of a trainee licence enables applicants to instruct for payment before they are qualified. The Appellant did so and failed to pass the instructional ability and fitness test within the twelve months’ period. The Appellant applied for a further licence prior to the end of this period and by s.129(6) of the Act “where a person applies for a new licence in substitution for a licence held by him and current at the date of application, the previous licence shall not expire ….. until ….. an appeal is finally disposed of”. The effect of this is that the Appellant has been able to continue to instruct under his licence, despite the expiry dates. Of course, if prior to disposal of the appeal he passes the instructional ability and fitness test, he then ceases to be a trainee and is no longer eligible for a further trainee licence. If on the other hand he fails this test after three attempts, the appeal is itself also bound to fail since by reg.13(2)(d) of the Regulations a further trainee licence may not be granted if the instructional ability and fitness test has been failed “more than twice”.
When the Appellant applied for a trainee licence he signed an application form, which included a declaration that he had read the Department’s booklet ADI 14. This booklet contained the following advice:
“If you are not using the licence for any reason, you should return it to us. Although you will not receive a refund for lost training time, we will know that you have not had full use of the licence and this will be a factor in deciding whether to issue a subsequent licence.”
The Registrar gave the following reasons for refusal:
‘(i) the purpose of the provisions governing the issue of licences is to afford applicants the opportunity of giving instruction to members of the public whilst endeavouring to achieve registration. The system of issuing licences is not and must not be allowed to become an alternative to the system of registration;
the licence granted to applicants is not to enable the instructor to teach for however long it takes to pass the examinations, but to allow up to six months’ experience of instruction. This provides a very reasonable period in which to reach the qualifying standard in the examination and, in particular, to obtain any necessary practical experience in tuition. The Appellant has already had two trainee licences which cover a period of 12 months. Moreover, by virtue of the Appellant having applied for a third licence before the expiry date of the second, that licence has remained in force to the present time and will allow him to continue to give paid instruction until determination of the appeal;
since passing his driving ability test the Appellant has failed the instructional ability test twice. Regrettably, the DVSA cancelled one more such test booked for 19 March 2025. Despite ample time and opportunity the Appellant has not been able to reach the required standard for qualification as an Approved Driving Instructor;
and the refusal of a third licence does not bar the Appellant from attempting the instructional ability test of the Register examinations. He does not need to hold a licence for that purpose, nor is it essential for him to give professional tuition under licence in order to obtain further training. The Appellant could attend a training course, or study and practice with an Approved Driving Instructor or give tuition on his own (provided that he does not receive payment of any kind for this). These alternatives are used by some trainees who acquire registration without obtaining any licences at all.’
Two licences were granted to the Appellant under section 129 of the Act for the purposes of enabling him to undergo the examination of his ability to give instruction in the driving of motor cars and were valid from 27 November 2023 to 26 November 2024. On 17 November 2024 the Registrar received an application from the Appellant for a second licence.
Following notification to the Appellant that the Registrar was considering the refusal of his application for the third licence, the Appellant made representations to the Registrar by way of email correspondence. After considering those representations, the Registrar decided to refuse the application and notified the Appellant of that decision by way of email correspondence dated 3 January 2025. The Appellant has appealed against the decision dated 3 January 2025. The Appellant provided a further written statement to be added to the appeal bundle.
Respondent’s reasons for decision
In the Statement of Case the Registrar has set out the reasons for the refusal of the application, as noted in paragraph 4 above.
The Registrar was not represented at the remote oral hearing
Appellant’s submissions
As noted above, the Appellant made written representations to the Registrar, provided a further statement and set out grounds of appeal in his notice of appeal. At the oral hearing, the Appellant indicated that he had prepared a written statement which he delivered orally. The written statement reflected what he had submitted in his written representations his notice of appeal and the further statement which he requested to have added to the appeal bundle. In summary, the Appellant has submitted the following:
He accepted and understood the Registrar’s stated principle that a third trainee licence should not ordinarily be granted and that two six-month licences are generally sufficient for an individual to progress to registration.
There is no statutory bar to the grant of a third licence under s.129 of the Act. Discretion is permitted where justified and the individual circumstances warranted the exercise of that discretion. Those circumstances were that his training had been hindered by issues which were without his control.
He had been diligent and committed during the qualification process. Nonetheless, both of his trainee licence periods were disrupted as a result of the DVSA’s booking system and limited availability of Part III test appointments.
Despite repeated efforts to book a Part III test during the period of his first trainee licence, there were no available test appointments. He had not been aware of the ‘book-to-hold’ process and that this would assist with securing of future test dates. He had continued to utilise the ‘standard’ booking process and by the time he had become aware of the alternative ‘book-to-hold’ system he first trainee licence had expired.
He had made use of the ‘book-to-hold’ system and had secured a Part III test appointment. Unfortunately, he failed the test. He acted immediately and re-booked and secured a further test appointment. This was then cancelled by DVSA.
He had written to DVSA seeking clarity about his ‘continuation rights’ and had not received a response. This had left him uncertain about to how to plan further.
He had demonstrated a serious commitment to the qualification process, He has passed parts I and II of the qualifying examination, had undertaken further training to prepare for the Part III examination and had booked a further Part III test appointment for 3 September 2025.
He respected the requirement to protect the integrity of the training and licensing system. He was not seeking to misuse the system or prolong his trainee licence period unnecessarily. He was requesting a time-limited extension solely to obtain the necessary practical teaching experience.
Without a trainee licence he would be unable to provide instruction in a realistic environment. Continued supervised training also supported public safety by ensuring that his training was applied and refined before final assessment.
He would be subject to disproportionate prejudice if the refusal of a third trainee licence was upheld.
He relied on the decision of the High Court in R v Registrar of Approved Driving Instructors, ex parte Khalid [1998] which he submitted:
Had determined that the Registrar’s discretion must be exercised fairly and reasonable;
Provided that candidates must not be prejudiced by administrative failings outside of their control;
There is no legal restriction preventing a third licence where appropriate justification exists; and
His case was factually similar and falls squarely within the reasoning set out in the judgment.
Considering the circumstances outlined, including the cancellation his test appointment by DVSA, the backlog in the availability of Part III test appointments and his readiness to qualify, his appeal should be allowed, and the Registrar should be directed to grant a third trainee licence.
Reasons
I begin by addressing several of the points which were raised by the Appellant in his written representation, notice of appeal and his statement at the oral hearing of his appeal.
The Appellant has referred to his ‘continuation rights’. By this, he means his ability to continue to receive payment for the provision of driving tuition while his application for a third trainee licence was pending. There are two aspects to this submission. I deal with the second below. The first is that the Appellant has submitted that he made enquiries to the office of the Registrar to clarify whether he was permitted to continue to provide driving tuition for payment and had not received a reply. In support of this he has forwarded email correspondence to the Registrar dated 25 January 2025. As I noted at the remote oral hearing, the Appellant had been given information about his ability to continue to provide driving tuition pending appeal, in the correspondence from the Registrar inviting written representations from him and in the notice of decision.
The Appellant has also submitted that he was unaware of the ‘book-and-hold’ system as part of the process for booking appointments to take the Part III examination. As a result, he submits that he lost the benefit of his first trainee licence. It has been my experience that the availability the ‘book-and-hold’ system has been well publicised and has been utilised by many driving instructors.
The Appellant has asserted that the provision of driving tuition without a trainee licence means that he would be unable to provide instruction in a realistic environment. In respect of this submission, I have noted and accepted the Registrar’s statement that:
‘… the refusal of a third licence does not bar the Appellant from attempting the instructional ability test of the Register examinations. He does not need to hold a licence for that purpose, nor is it essential for him to give professional tuition under licence in order to obtain further training. The Appellant could attend a training course, or study and practice with an Approved Driving Instructor or give tuition on his own (provided that he does not receive payment of any kind for this). These alternatives are used by some trainees who acquire registration without obtaining any licences at all.’
The Appellant has asked me to consider the decision of the High Court in R v Registrar of Approved Driving Instructors, ex parte Khalid. One of his submissions in connection with this decision is that ‘… his own case was factually similar and falls squarely within the reasoning set out in the judgment.’ The key here is that each case is based on its own individual facts and circumstances. That the facts in the Appellant’s case are similar to those pertaining in ex parte Khalid does not mean that the outcome of his appeal should be the same. In any event, the principles set out in the case are unproblematic and neutral and are accepted and applied by the relevant decision-making authorities including this Tribunal.
The Appellant has asserted that the cancellation of one test appointment by DVSA was a factor in favour of the grant of a third trainee licence and that he had been subject to ‘disproportionate prejudice’ by this factor and by the general lack of availability of appointments for the Part III examination. The cancellation of a single test appointment is an inconvenience and presents difficulties in having to re-book. Cancellations happen to many of those who have booked test appointments and, in general, cancelled appointments are a part of everyday life. Further, when aware of the ‘test-and-book’ process, the Appellant’s difficulties with the booking system appear to have been alleviated. It could not, therefore, be said, in my view, that the Appellant has been the subject of disproportionate prejudice.
The arguments which the Registrar has submitted in support of his decision to refuse the Appellant’s application for a third trainee licence are powerful. The Appellant has had the benefit of two trainee licences already. Further, as he had applied for a third trainee licence before the expiry of the second and has exercised his right to appeal against the decision of the Registrar, his second trainee licence has remained in force to the present time and has allowed him to continue to give paid instruction until the determination of his appeal. As of the date of this decision, therefore, the Appellant has had the benefit of a trainee licence for some twenty-one months. That is certainly in excess of the ‘reasonable period’ envisaged in the purpose of the trainee licence system.
Nonetheless, having heard from and seen the Appellant, and subject to what I have set out above, I have been impressed by his commitment to his career as a professional driving instructor and his approach to ensuring that he adhered to the requirements of the registration process. For example, he informed me that when he did not receive a response to his query about his ‘continuation rights’, he decided to exercise caution in the provision of paid driving tuition. Further, when he became aware of the ‘book-to-hold’ process, he took immediate action to obtain an initial test appointment and subsequent test appointments following failures. I accept his statements that he does not seek to misuse the trainee licence process and to prolong the qualification period unnecessarily. He seeks a further trainee licence for a time-limited period. He has also engaged in further training to improve his chances of passing the Part III examination at his next (and final) attempt. He is aware of the regulatory aspects of the profession of driving instruction.
Accordingly, and subject to the reservations which I have set out above, I am, on balance, prepared to allow the appeal.
The Appellant should note the following. I have observed that he is due to undergo the Part III examination for the third and final time on 3 September 2025. The result of that examination will be definitive of his registration. That is because if he passes the instructional ability and fitness test on that date, he then ceases to be a trainee and is no longer eligible for a further trainee licence. If on the other hand he fails this test after what will be three attempts, he will not be entitled to a further trainee licence because, by reg.13(2)(d) of the Regulations a further trainee licence may not be granted if the instructional ability and fitness test has been failed “more than twice”.
If, on the other hand, the Appellant does not undergo the Part III examination on 3 September and decides, instead, to take advantage of a further six-month trainee licence period, then he will be obliged to undergo the Part III examination at some stage during that period. That is because it is wholly unlikely that any application for a fourth trainee licence will be accepted.
Signed 
Date: 7 August 2025
Judge of the Upper Tribunal