Case Reference: FT/D/2024/0180
Transport
Heard by Cloud Video Platform
Adjourned on: 2 August 2024
Adjourned on: 14 January 2025
Before
JUDGE HEALD
MEMBER BOOTH
MEMBER ROANTREE
Between
GUNESHWAR SINGH BUCKTAWOR
Appellant
and
REGISTRAR OF APPROVED DRIVING INSTRUCTORS
Respondent
Representation:
For the Appellant: the Appellant did not attend and was not represented.
For the Respondent: Mr Heard represented the Respondent.
Decision: The Appeal is Dismissed.
REASONS
This Appeal, commenced in February 2024, is brought by the Appellant pursuant to section 131(1)(c) Road Traffic Act 1988 ("the Act"). It relates to a decision made by the Respondent ("the Registrar") dated 27 December 2023 ("the Decision") to remove his name from the Register of Approved Driving Instructors ("ADI") on the grounds that he had ceased to be a fit and proper person ("FPP").
What follows is a summary of the submissions, evidence and our view of the law. It does not seek to provide every step of our reasoning. The absence of a reference by us to any specific submission or evidence does not mean it has not been considered.
Page numbers indicated by their inclusion in brackets refer to pages of the Bundle.
Relevant law
A person may only provide paid driving instruction if his name is on the Register (section 123(1) of the Act) or if he holds a licence by section 129(1) of the Act and in accordance with The Motor Cars (Driving Instruction) Regulations 2005 ("2005 Regs").
Section 128(1)(a) of the Act provides:-
"(1)The Registrar may remove the name of a person from the register if he is satisfied that—
(a)in a case where his name has not been retained in the register under section 127 of this Act, at any time since the entry of his name was made, and
(b)in a case where his name has been so retained under that section, at any time since it was last retained,
any of the relevant conditions was fulfilled in his case."
The conditions include at section 128(2)(e) of the Act "that he ceased, apart from fulfilment of any of the preceding conditions, to be a fit and proper person to have his name included in the register."
In Harris -v- Registrar of Approved Driving Instructors [2010] EWCA Civ 808 Richards LJ held at para 30:-
".....I do not accept that the scope of the "fit and proper person" condition is as narrow as Mr Leviseur contended. Of course, a central question is an applicant's fitness to be a driving instructor – that he has the requisite instructional ability and driving ability and that he does not pose a risk in any respect to his pupils or other users of the road. The "fit and proper person" condition has obvious relevance to that issue, though the more technical aspects are covered by other, more specific conditions relating to tests, driving licence and the like. But the condition is not simply that the applicant is a fit and proper person to be a driving instructor; it is that he is a fit and proper person to have his name entered in the register. Registration carries with it an official seal of approval: those registered are known as "Driving Standards Agency Approved Driving Instructors".
Section 128(5)(c) of the Act provides that before deciding to remove a name from the Register the Registrar must consider any representations made by the ADI concerned.
Guidance and Code
The DVSA has issued Guidance which an ADI is required to declare they have read when applying to become an ADI. It states:-
Responsibilities
When you’re giving driving lessons, you’re responsible for your own safety, that of your pupil and other road users.
You have to show a:...
professional approach to your customers
responsible attitude to your pupils and profession
Being a ‘fit and proper’ person
You must be a ‘fit and proper’ person to be an ADI.
ADIs are in a position of considerable trust. The ADI Registrar protects the image of the register and maintains the public’s confidence in the ADI industry.
What ‘fit and proper’ means
The law says you must be a ‘fit and proper’ person, but does not define what it means.
The ADI Registrar interprets it as the personal and professional standards, conduct or behaviour that could be unacceptable in the eyes of the public and other ADIs.
"It’s not possible to be definitive about what’s classed as ‘fit and proper’. There has to be some discretion to take into account the circumstances of each case.
The ADI Registrar makes an assessment of the risk you’re likely to pose to the public."
Personal conduct
"When deciding if you’re a ‘fit and proper’ person, DVSA will check if you have:...had any substantiated complaints of inappropriate behaviour or misconduct"
Additionally a Code has been agreed between the DVSA and the National Associations Strategic Partnership which is a steering group for approved driving instructor associations. Whilst it is voluntary the Guidance states that "It is a framework within which all instructors should operate."The DVSA also says that it gives "a summary of the conduct and behaviours that DVSA and the public expect from an ADI."It says for example:-
"Driver trainers will be professional, comply with the law, keep clients safe and treat them with respect. The instructor agrees to:
at all times behave in a professional manner towards clients in line with the standards in the national standard for driver and rider training
avoid inappropriate physical contact with clients
avoid the use of inappropriate language to clients
not initiate inappropriate discussions about their own personal relationships and take care to avoid becoming involved in a client’s personal affairs or discussions about a client’s personal relationships, unless safeguarding concerns are raised
avoid circumstances and situations which are or could be perceived to be of an inappropriate nature
respect client confidentiality whilst understanding the actions to take if a client reveals concerns about their private lives
treat clients with respect and consideration and support them to achieve the learning outcomes."
Role of the Tribunal
Section 131(1) of the Act provides:-
"A person who is aggrieved by a decision of the Registrar...(c)to remove his name from the register...may appeal to the First-tier Tribunal."
Section 131 (3) of the Act provides that the Tribunal may make such order:-
"(a)for the grant or refusal of the application
or,
(b)for the removal or the retention of the name in the register, or the revocation or continuation of the licence,
(as the case may be) as it thinks fit."
By Section 131 (4A) of the Act:-
"If the First-tier Tribunal considersthat any evidence adduced on an appeal had not been adduced to the Registrar before he gave the decision to which the appeal relates, it may (instead of making an order under subsection (3) above) remit the matter to the Registrar for him to reconsider the decision."
In considering the Appeal the Tribunal must give appropriate weight to the Registrar's view. The Court of Appeal in Hope and Glory Public House Ltd, R (on the application of) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31 (26 January 2011) held that the answer to " How much weight was the district judge entitled to give to the decision of the licensing authority?" was:-
"45...the proper conclusion....can only be stated in very general terms. It is right in all cases that the magistrates' court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which the magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal."
When making its Decision, 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 the relevant legislation with making such decisions. It is not the role of the Tribunal to carry out a procedural review of the Registrar's decision-making process but it does need to consider all the circumstances.
Our Decision is reached on the balance of probabilities.
Evidence and matters considered
We had a bundle of 31 pdf pages. The Appellant did not attend. Mr Heard represented the Registrar.
Non-attendance of the Appellant
Due to the Appellant's absence consideration was given to adjourning, proceeding with or striking out the Appeal on the basis of the overriding objective in rule 2 The Tribunal Procedure (First-tier Tribunal) (General Regulatory Chamber) Rules 2009 ("2009 Rules") and rule 8(3)(a) and (b) 2009 Rules.
Rule 8(3) 2009 Rules provides that:-
The Tribunal may strike out the whole or a part of the proceedings if— (a) the appellant has failed to comply with a direction which stated that failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them; (b) the appellant has failed to co-operate with the Tribunal to such an extent that the Tribunal cannot deal with the proceedings fairly and justly; or..."
However rule 8(4) 2009 Rules adds that:-
The Tribunal may not strike out the whole or a part of the proceedings under paragraph (2) or (3)(b) or (c) without first giving the appellant an opportunity to make representations in relation to the proposed striking out."
As regards rule 8(3)(a) 2009 Rules the Appellant had failed to attend and a strike out warning had been given in the Directions of 16 June 2025 but attendance itself had not been the thrust of those Directions. As regards rule 8(3)(b) rule 8(4) requires the Appellant to be given an opportunity to make representations and this had not occurred. Accordingly the Appeal was not struck out.
We decided it was appropriate to continue to hear the Appeal in the absence of the Appellant having considered the overriding objective and on the basis of what follows:-
the Appellant knew about the hearing and had said he was able to attend. No application to adjourn had been made by him.
the Decision had been made as long ago as 27 December 2023.
the Decision itself resulted from a complaint ("the Complaint") made against the Appellant in July 2023 by a person who had until May 2023 been a pupil ("the Complainant").
the nature of the Complaint about which the Appellant had not agreed to be interviewed nor did he make representations when told his name may be removed from the Register.
when making the Decision the Registrar had indicated that, as allowed by section 128(7) of the Act, the Decision would not take immediate effect. The Appellant had therefore been able to continue as an ADI pending the outcome of this Appeal in the intervening period. Further the Registrar did not decide to review and remove this section 128(7) status notwithstanding (i) the delay caused by the adjournments (ii) the nature of the Complaint (iii) his conclusion in December 2023 that the Appellant was not a FPP and (iv) the existence of a previous complaint made in 2022 (25) by a pupil about which a warning had been given in March 2023.
in his Appeal form and CMQ the Appellant had said he wanted the matter dealt with without a hearing. It was listed for a CVP as requested by the Registrar and because the Tribunal was not satisfied (see rule 32 2009 Rules) that it was suitable for a paper hearing.
the Appeal was commenced on 23 February 2024 and listed to be heard on 2 August 2024 and then 14 January 2025.
the 2 August 2024 hearing was adjourned for the reasons set out in the Directions of that date including that the Appellant knew the date and time of the hearing and:-
Upon being contacted by the clerk to the Tribunal at 12.00 noon on the date of hearing, the scheduled commencement time of the hearing, the Appellant advised that he was not at home and was unaware of the hearing. The Tribunal did not accept this latter assertion of the Appellant. The Appellant went on to state to the clerk that he was not prepared for the hearing and sought an adjournment"
the Appeal was then listed to be heard on 14 January 2025. This was again adjourned. The Reasons for this adjournment state:-
The clerk contacted the Appellant prior to the hearing to check he was ready for it which he said he was. He did not appear at 12 noon. He was called and indicated he was having difficulty accessing the CVP. The clerk spent some time seeking to assist him. He was still not able to access the CVP. He was then asked to dial in by telephone. This took some time but it was achieved.
When the hearing commenced I asked the Appellant if he had the bundle. He said he recalled seeing it but did not have it to hand. I asked him to look in his emails for it and the clerk assisted him with the date. The email was not found and so the bundle was sent again.
When checking if he could see the pages in the bundle the Appellant then said they were too small on his PC and he was struggling to make them bigger. I asked him to try as the bundle was going to be important in the Appeal. The call became silent and after some time the line was dropped.
It was by now after 12.30 and in light of other cases in the list (and having considered the overriding objective) I decided to adjourn the hearing to 4pm and the clerk was asked to contact the Appellant to tell him. He did so.
At 2.43pm the Appellant emailed the clerk (having called him already) and said:-
"Hi I unable to attend at 4pm, as I have an appointment for [redacted]. Please Kindly arrange for another date. Thank you."
on 16 June 2025 CMD were issued.
by an email of 25 June 2025 at 08.08 the Appellant notified the Tribunal that he was able to attend the Appeal on 1 August 2025. He said "I wanted to inform you that I will be able to attend on August 1, 2025. Thank you."
on 1 August 2025 the Tribunal's clerk sought to make contact with the Appellant just prior to the hearing which was due to start at 11:00. He reported that his call had been answered but then the connection was cut by the Appellant after the clerk had said who he was. The clerk gained the impression that the Appellant was in a car. He tried several more times but his calls were then not answered. I adjourned the hearing for 20 minutes. The Clerk emailed the Appellant at 11.15 saying:-
"Dear Mr Bucktawor
Can you please inform the Tribunal if you are attending your Transport FPP appeal hearing today, it was originally listed for 11am but the Tribunal will restart at 11:20 as we are waiting for your attendance. I have also attempted to contact you on the telephone number supplied to the Tribunal – [redacted}– but it is going to a message service."
but no message was received back and the Appellant did not attend.
Background Chronology
In summary from the evidence:-
the Appellant's name was placed on the Register at some point before 1990 and his certificate was due to expire in 2026 (14).
from about February 2023 the Appellant was the ADI to the Complainant who had about 13 lessons in advance of her driving test in May 2023.
on 1 March 2023 (26) the Appellant was interviewed by DVSA about a separate complaint made against him.
on 2 March 2023 (26) DVSA wrote to the Appellant about this separate complaint and warned him that while no action was to be taken "...there were allegations of inappropriate behaviour and text messages". He was reminded of the need to live up to the reputation of being an ADI and "keep all conversations and communications professional at all times with your pupils" He was also warned that if there were to be another complaint of this nature the Registrar "may have to consider whether you still meet the [FPP] criteria to remain on the [Register]."
the Complainant passed her test on 25 May 2023 (27).
on 2 July 2023 after 21:00 hrs the messages (18-19) that led to the Complaint were exchanged (23).
on 2 July 2023 at 22.33 hrs the Registrar received the Complaint (17).
the Registrar investigated the Complaint including by taking a statement from the Complainant (27).
the Appellant was invited to an interview but declined to attend (15).
by an email of 24 November 2023 (27) the Appellant was informed of the details of the Complaint. He was warned that the Registrar was considering the removal of his name from the Register and he was asked for any representations. Mr Heard confirmed that he did not make any.
on 27 December 2023 (1 & 30) the Registrar notified the Appellant of the Decision namely to remove his name from the Register but by section 128(7) of the Act directed that the Decision would not take immediate effect.
Appeal
This Appeal (2-12) of 23 February 2024 is against the Decision. It was made late due to the use initially of a previous version of the appeal form. The Registrar has provided a Response dated 4 February 2025 (13-16).
The Complaint
The Appeal takes place without the Complaint being tested by cross examination and in the absence of the Complainant. Our role does not extend to seeking to make findings of fact about the Complaint (or any counter allegations) save where there are admissions or evidence from which we are able to reach our own conclusions.
The Complainant passed her test at the end of May 2023 at which point she ceased to be the Appellant's pupil. In the Complaint (17) and her statement (27) she said for example:-
"During my lessons I never felt uncomfortable as his behavior was respectful" "...I felt so safe during our lessons"
"Whilst he was teaching me I never felt that he was being inappropriate in any way and there were no events which indicated that he was sexually interested in me"
"in all our text messages he always used "kisses" at the end which I also typed back as I assumed it was a friendly gesture."
She went on to say that having passed her test there had been casual talk between them about going out for a drink to celebrate (17). She says that in her view the messages became inappropriate on 2 July 2023 after 21:00 hrs as set out at pages 18-19 of the bundle.
The Complaint was made later that evening " in which she starts by saying "I am writing to inform you that I have been receiving inappropriate sexual text messages from my driving instructor."
The Registrar's position
In his letter of 24 November 2023 (27) the Registrar provided details of the Complaint to the Appellant and indicated he was considering the removal of the Appellant's name from the Register on the grounds he was no longer a FPP based on the Complaint. Reference was also made to the warning letter in March 2023. No representations were made by the Appellant. In the Response (14) the Registrar says:-
On 2 July 2023 I received a complaint (D1) regarding the behaviour and conduct of the appellant which included allegations of inappropriate messaging and conversations as well as the appellant hugging the complainant..."
At the Appeal Mr Heard, for the Registrar, confirmed that there was in fact no allegation of hugging and we did not consider this further.
The Registrar also said:-
The appellant has pursued a course of conduct that is not appropriate to the professional relationship between instructor and pupil. The conditions for entry onto the register extend beyond instructional ability and require that the applicant is a fit and proper person. Teaching (generally) young people to drive as a profession is a responsible and demanding task and should only be entrusted to those with high standards. I would therefore be failing in my public duty if I allowed a person who had conducted himself in such a manner to have his name retained in the Register.
Registration represents official approval; the title prescribed for use by instructors is "Driver & Vehicle Standards Agency Approved Driving Instructor". Approval is not limited to instructional ability alone, but also extends to a person's character, behaviour and standard of conduct. In view of this, I am concerned that the good name of the register would be tarnished and the public's confidence undermined if it was generally known that I had allowed the appellant's name to be retained in the register.
It would be offensive to other ADIs and persons trying to qualify as ADIs, who had been scrupulous in observing professional behaviour, for me to ignore this conduct"
The Appellant's case
The Appellant did not attend an interview or provide representations when invited to do so to explain his position or to challenge the Complaint. In his grounds of appeal he said:-
"[the Complainant] has made several approach to me during our driving lessons. She has asked me to come to her flat, to have good times and fun which I've refused as am a happily married man. She has offered red/white wine. During the lessons she has touched me between my legs and smiled @ me. I explained this is not appropiate. She just laughed.Because, I refused she said that she will take her revenge "you don't know me yet " that what she told me. When she passed her test I texted her. My text was "NOT as an instructor". It was made as a friend to keep her satisfied."
The outcome he seeks (10) is:-
"no action to be taken as I have made the text outside my instructor integrity ie NOT as a driving instructor but as a friend."
This was put to Mr Heard at the Appeal. He was asked to set out for us the Registrar's view on the points made in the Appeal in particular as the Complainant at the time of the exchange of messages was no longer a pupil of the Appellant.
While the Code does not mention former clients specifically the Registrar's view is that the fact that a client/ADI formal teaching relationship had ended before the behaviour complained of occurs does not preclude a decision being made to remove an ADI's name from the Register on the grounds they are no longer a FPP. In his view this consideration had to be broader and more holistic than the precise words of the Code and in any event the Code does itself say that the instructor agrees to "avoid circumstances and situations which are or could be perceived to be of an inappropriate nature."
Tribunal's review
We considered all the circumstances presented to us noting in particular the Registrar's view as the person who has the statutory role to maintain the Register. We also noted the content of the Guidance and the Code but also that despite the FPP decision the Registrar, by section 128(7) of the Act, had allowed the Appellant to continue as an ADI for a considerable period of time.
There was no evidence adduced at the Appeal that had not been adduced to the Registrar before he made the Decision.
We made these findings of fact:-
the Complainant ceased to be the Appellant's client/pupil when she passed her test on 25 May 2023.
the messages were sent as the Appellant implicitly confirms in his Reasons for Appeal (9).
the Complaint did not directly relate to period of time the Appellant was the Complainant's ADI but the messages did refer back to that time.
the reference by the Registrar to hugging was inaccurate.
a warning had been given by the Registrar to the Appellant on 2 March 2023 after a complaint by a different pupil which involved messaging.
Although we did not hear from the Appellant or Complainant we also concluded that the assertions made by the Appellant in his Reasons for Appeal about the Complainant's approaches to him and threats of "revenge" made to him were untrue because if true we concluded that:-
he would have immediately ceased to be her ADI.
he would not have sent the messages on 2 July 2023.
the Complainant would not have responded as she did.
he would not have referred to her as a friend as he did in sections 7 and 8 of the Appeal.
he would have attended an interview and/or made representations and/or attended the Appeal to put his case.
The Appellant seeks to rely on the fact that by the time of the messages the Complainant was no longer his client/pupil. When he said that he wanted "no action to be taken as I have made the text outside my instructor integrity ie NOT as a driving instructor but as a friend." it was as if what he had taken from the previous warning was that the key issue for him was not to communicate inappropriately with those who were pupils at the time but that former pupils could be dealt with differently.
The Act, 2005 Regs, Guidance and Code do not outlaw relationships between ADI and former pupils. We accept that there could be circumstances where an ADI has a consensual relationship with a former client/pupil without the FPP status of that ADI being at risk and that there may also be circumstances in which an unsuccessful attempt to have a relationship would also not put the FPP status at risk. In any such situations all the relevant facts would be considered.
We agree with the Registrar that while the Code is an important element when reviewing the FPP status of an ADI it is not the only thing to be considered. It is voluntary and, as it says, it is only a "framework". The Guidance refers to it as "a summary..."It also does say an instructor is to "avoid circumstances and situations which are or could be perceived to be of an inappropriate nature." The Code does not seek to set out exactly how an ADI should or should not behave in all situations. It is not, in our view, appropriate to seek to interpret the Code in a precise legalistic manner.
On FPP the Guidance itself says that:-
"The law says you must be a ‘fit and proper’ person, but does not define what it means.
The ADI Registrar interprets it as the personal and professional standards, conduct or behavior that could be unacceptable in the eyes of the public and other ADIs.
It’s not possible to be definitive about what’s classed as ‘fit and proper’. There has to be some discretion to take into account the circumstances of each case.
The ADI Registrar makes an assessment of the risk you’re likely to pose to the public."
Turning to this case we agree with the Registrar's concern about the FPP status of the Appellant (noting the mistaken allegation of hugging) because of the:-
Complaint itself and our findings of fact regarding it.
existence of the previous complaint, its similar nature (involving messages) and the warning given and the short time period between the warning being issued regarding the previous complaint and the Complaint.
nature and tone of the messages.
relative young age of the Complainant.
short gap of a few weeks between the ending of the ADI/client relationship and the messages.
need for the public to have confidence that those whose names are on the Register are FPP in a holistic Harris sense.
Code itself which requires ADI to avoid "avoid circumstances and situations which are or could be perceived to be of an inappropriate nature."
findings of fact rejecting the assertions made by the Appellant about the Complainant's conduct towards him.
Decision
For the reasons set out above the Appellant has not persuaded us that the Registrar’s decision was wrong and accordingly the Appeal is dismissed.
Signed: Judge Heald Dated: 8 August 2025