Kevin Foster-Grant v The Registrar of Approved Driving Instructors

References in this decision to a ‘section’ are references to the applicable section of The Road Traffic Act 1988.

In this decision, we use the following terms to denote the meanings shown:

This was an appeal against the Registrar’s Decision.

The reasons for the Registrar’s Decision were, in summary, that the Appellant had been dismissed from his employment with the DVSA and accordingly the Registrar considered that the Appellant is not a fit and proper person to become an ADI.

The Appellant challenged the Registrar’s Decision, arguing that they were a fit and proper person. The material aspects of the Appellant’s appeal were, in summary:

The Appellant provided two references which attested to his good character, including with reference to his dealings with a diverse range of people.

The Registrar resisted the appeal. The Registrar’s Statement of Case stated that the Appellant had been dismissed from his employment with the DVSA for breaching DVSA’s Dignity at Work Policy, DVSA’s reporting Assaults Policy, The Civil Service Code and The Equalities Act. The Registrar accepted that the Appellant had not been convicted of any offence, but considered that the Appellant had pursued a course of conduct that is not appropriate for ADIs.

In his Statement of Case, the Registrar expressed concern that the good name of the Register would be tarnished and the public's confidence undermined if it was known that the Appellant's name was allowed to be retained in the Register (but see paragraph 26 below).

The Registrar accordingly upheld their view that the Appellant was not a ‘fit and proper person’ to hold a Licence.

The proceedings were held by the cloud video platform. The Tribunal Panel, the Appellant and Mr Heard (on behalf of the Registrar) joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. There were no interruptions of note during the hearing.

The Tribunal read and took account of a bundle of evidence and pleadings. Amongst other things, the bundle included the character references we have referred to and details of the issues raised in, and the outcome of, the Appellant’s disciplinary meeting with the DVSA.

We heard oral submissions from the Appellant and from Mr Heard on behalf of the Registrar.

All of the contents of the bundle and the parties’ submissions were taken into account, even if not directly referred to in this decision.

Section 123(1) prohibits the giving of instruction in the driving of a motor car for payment unless the instructor’s name is entered in the Register, or they are the holder of a current Licence.

Conditions for the grant of a Licence include that a person is, and continues to be, a “fit and proper person” pursuant to section 129(2)(b), which refers to the requirements in section 125(3)(e).

The Registrar may therefore refuse to issue a Licence under section 129(2) if the Registrar considers that the person applying for a Licence is not a “fit and proper person”.

The requirement to be a “fit and proper person” is not simply that the person is a fit and proper person to be, or to become, a driving instructor, but that they are a fit and proper person to have their named entered in the Register (which the Registrar must be satisfied of, as a condition to granting a Licence). Accordingly, the requirement to be a “fit and proper person” extends beyond instructional ability alone and, in assessing whether someone is a “fit and proper person”, account has to be taken of their character, behaviour and standards of conduct. This involves consideration of all material matters, including convictions, cautions and other relevant behaviour, placing all matters in context, and balancing positive and negative features as appropriate.

The entry of a person’s name in the Register carries with it an ‘official seal of approval’ and consequently maintenance of public confidence in the Register is important. The Registrar therefore has the duty of ensuring that ADIs are ‘fit and proper’ persons to have their names entered in the Register. As part of that, the Registrar exercises functions of scrutiny and that is why there are stringent disclosure requirements expected of ADIs and those wishing to become an ADI.

In cases involving motoring offences, it is expected that anyone who is to be an ADI will have standards of driving and behaviour above that of an ordinary motorist. Teaching people of all ages (including those aged under 18) to drive safely, carefully and competently is a professional vocation requiring a significant degree of responsibility. Such a demanding task should only be entrusted to those with high personal and professional standards and who themselves have demonstrated a keen regard for road safety and compliance with the law.

In cases involving non-motoring offences, the standing of the Register could be substantially diminished, and the public’s confidence could be undermined, if it were known that a person’s name had been permitted onto, or allowed to remain on, the Register when they had demonstrated behaviours, or been convicted or cautioned in relation to offences, substantially material to the question of fitness.

Some of the factors in the preceding paragraph can also be relevant in cases involving motoring offences.

An appeal to the Tribunal against the Registrar’s Decision is undertaken by way of a ‘re-hearing’; the Tribunal ‘stands in the shoes’ of the Registrar and takes a fresh decision on the evidence before it, giving appropriate weight to the Registrar’s Decision (as the Registrar is tasked by Parliament with making such decisions). The Tribunal does not conduct a procedural review of the Registrar’s decision-making process but, in reaching its decision, the Tribunal may review any findings of fact on which the Registrar’s Decision was based and the Tribunal may come to a different decision regarding those facts.

The powers of the Tribunal in determining the appeal are set out in section 131(3). In summary, for the purposes of the appeal, the Tribunal is empowered to make an order for the grant or refusal of the Application, as it thinks fit.

However, under section 131(4A), if the Tribunal considers that any evidence adduced on the appeal had not been adduced to the Registrar before the Registrar’s Decision, it may (instead of making such an order) remit the matter to the Registrar for them to reconsider the Registrar’s Decision.

Where the Tribunal makes an order for the refusal of the Application, it may also, pursuant to section 131(4), direct that (in essence) the Appellant cannot apply for a Licence for a period of up to four years.

As noted in paragraph 8 above, the Registrar’s Statement of Case reflected the Registrar’s concern that the good name of the Register would be tarnished, and the public's confidence undermined, if it was known that the Appellant's name was allowed “to be retained” in the Register. However, this was not a case relating to the removal or retention of the Appellant’s name in the Register, but rather the appeal related to whether or not the Registrar’s Decision was correct in concluding that the Appellant was not a fit and proper to be granted a Licence.

During the hearing, the above point was raised with Mr Heard, who confirmed that the Registrar’s position was that the Appellant was not a fit and proper to be granted a Licence on the basis that he was not a fit and proper person to be an ADI and have his name entered in the Register.

As we have noted, the Registrar has the duty of ensuring that those who wish to have a Licence are ‘fit and proper’ persons to do so, and whether or not a person is ‘fit and proper’ extends beyond instructional ability alone and includes consideration of their character, behaviour and standards of conduct.

In this case, the Registrar’s position was that the circumstances giving rise to the Appellant’s dismissal from the DVSA were such that the Appellant is not a ‘fit and proper person’. As we have noted, the appeal bundle contained documentation relating to the outcome of the DVSA’s disciplinary process which had resulted in the Appellant being dismissed, including particulars of the case against him and the DVSA’s findings on the matters in question.

We acknowledge that some (if not all) of the matters raised in respect of that disciplinary process are types of issues which would typically be relevant to our consideration of whether someone is a ‘fit and proper’ person to be granted a Licence.

However, in this case, we are conscious of the possible apparent impartiality and/or conflict of interest on the part of the Registrar in drawing a conclusion that the Appellant is not a ‘fit and proper’ person to hold a Licence which is based on the DVSA’s own findings relating to the Appellant’s dismissal. In other words, the Registrar’s Decision relies on disputed employer disciplinary findings which have not been independently tested.

We are also mindful that the Appellant has contested his dismissal from the DVSA and that this is the subject of proceedings before the Employment Tribunal. The Appellant confirmed during the hearing that his Employment Tribunal appeal is scheduled to be heard in May 2027, for a four-day hearing. In the course of that hearing, the Employment Tribunal will, of course, examine the circumstances of the Appellant’s dismissal from the DVSA and will have evidence before it in order to determine whether or not his dismissal was justified.

In our view, it would be wrong for us to determine that the Appellant is not a ‘fit and proper’ person to hold a Licence based on the DVSA’s own findings, when those findings are the subject of live proceedings before the Employment Tribunal (and which are not within our remit to consider in respect of the appeal before us).

We would just add the following observations. If the Employment Tribunal appeal is dismissed (or settled, depending on the nature of the settlement), then it may be appropriate at that time for the Registrar to reconsider whether the Appellant is a ‘fit and proper’ person to hold a Licence. Likewise, if the Appellant was to withdraw his appeal to the Employment Tribunal then the Registrar may also then decide to review the Appellant’s status in the light of that.

For all of the reasons we have given, we find that the Appellant has not failed to meet the statutory requirement to be a fit and proper person to be granted a Licence. On balance, taking into account all the circumstances, we conclude that the Registrar’s Decision was incorrect.

We therefore allow the appeal and we order that the Application be granted. Pursuant to regulation 14 of the Motor Cars (Driving Instruction) Regulations 2005, the duration of the Licence shall be 6 months commencing on the date of the grant of it (although the Licence shall cease in force earlier if a final attempt at the ‘Part 3 Test’ is failed, or if the Appellant passes the ‘Part 3 Test’).