First-tier Tribunal (General Regulatory Chamber)

Neutral citation number: [2025] UKFTT 283 (GRC)

Case Reference: FT/D/2024/0536

First-tier Tribunal

(General Regulatory Chamber)

Transport

Heard on: 14 February 2025

Decision given on: 7 March 2025

Before

 

DISTRICT JUDGE WATKIN

TRIBUNAL MEMBER BOOTH

TRIBUNAL MEMBER ROANTREE

 

Between

 

Damon charles

Appellant

and

 

REGISTRAR OF APPROVED DRIVING INSTRUCTORS

Respondent

Representation:

For the Appellant: Mr Tom Flavin

For the Respondent: No attendance

 

Decision: The appeal is Allowed

 

 

REASONS

 

BACKGROUND

1.      By letter of 24 May 2024, the Respondent wrote to the Appellant to advise that it had been decided that his name should be removed from the register on the grounds that he had ceased to be a fit and proper person pursuant to section 128(2)(e) of the Road Traffic Act 1988 (the "Act").

2.      The letter stated that the decision had been made due to the Appellant's conviction described as:

"Conviction dated 18 April 2024 for breach of requirements as to control of the vehicle, mobile telephones and so on (CU80) on 24 February 2023 resulting in 6 penalty points and a £40 fine"

3.      The Respondent also advised that the decision would not take immediate effect and notified the Appellant of his right to appeal the decision under section 131 of the Act (as amended by the Transport Act 2000) within 28 days of the letter.

4.      By form GRC1 dated 21 June 2024, the Appellant appealed to this Tribunal setting out the following chronology:

24 February 2023	Date of alleged offence
2 March 2023	Conditional offer of a fixed penalty of 3 endorsement points and £100 fine. The offer required that only "certain driving licence details" be provided.
2 April 2023	Appellant made the payment but did not provide driving licence details.
24 August 2023	Date of Single Justice Procedure Notice - notifying Appellant of prosecution due to conditional offer of fixed penalty process not being completed - no licence having been submitted for endorsement.
1 February 2024	Notice of hearing -18 April 2024
18 April 2024	Appellant pleads guilty and sentenced to 6 penalty points and a £100 fine
22 April 2024	Appellant notifies DVSA of the conviction.
24 April 2024	Email from DVSA advising Appellant that consideration was being given to the removal of his name from the register and allowing him 28 days to make representations.
22 May 2024	Written representations sent to the DVSA by the Appellant.
24 May 2024	DVSA decision notifying of right to appeal.

 

THE RELEVANT LAW

Driving Instruction

5.      Part V of the Road Traffic Act 1988 (the "Act") relates to driving instruction.

6.      Section 123(1) of the Act prohibits the giving of driving instruction for payment by any person whose name is not in the Register of Approved Driving Instructors, or they are the holder, or a current licence issued under section 129(1) (for the purpose of acquiring experience).

7.      By Section 125(3)(e) one of the criteria required for a person to be entered onto the register of approved instructors is that they are "a fit and proper person". There is no definition of a "fit and proper" person within the Act.

8.      By section 128(2)(e) of the Act, t he Registrar may remove the name of a person from the register if he is satisfied that he has ceased be a fit and proper person to have his name included in the register.

9.      By section 128(4) before removing the name of a person from the register, the registrar must give him written notice that removal is being considered with particulars of the grounds and not decide to remove his name until after the expiry of 28 days from the day on which the notice is given, to allow him to make representations. The registrar must take into account any representations made within the period (section 128(5)).

10.  Section 131(1) of the Act allows a person who is aggrieved by a decision of the registrar to remove his name from the register may appeal to the First-tier Tribunal. The Tribunal may make such order as it thinks fit (section 131(3)).

11.  Pursuant to s.131(4) the Tribunal may also direct that no further application by the appellant for the grant of a licence, or for his name to be entered in the register, shall be made before the expiration of a period (not to exceed four years).

The Offence

12.  Part II of the Act contains offences relating to the construction and use of vehicles and, in particular, details of relevant offences. Section 41D of the Act contains the offence of contravening or failing to comply with a construction and use requirement.

"41D Breach of requirements as to control of vehicle, mobile telephones etc.

A person who contravenes or fails to comply with a construction and use requirement—

(a)     as to not driving a motor vehicle in a position which does not give proper control or a full view of the road and traffic ahead, or not causing or permitting the driving of a motor vehicle by another person in such a position, or

(b)     as to not driving or supervising the driving of a motor vehicle while using a hand-held mobile telephone or other hand-held interactive communication device, or not causing or permitting the driving of a motor vehicle by another person using such a telephone or other device,

is guilty of an offence. "

 

Road Vehicles (Construction and Use) Regulations 1986

13.  Road Vehicles (Construction and Use) Regulations 1986 (the "Regulations") provide contain the specific offences of "Driver's control" and use of mobile phones.

14.  Regulation 104 provides:

"Driver's control

No person shall drive or cause or permit any other person to drive, a motor vehicle on a road if he is in such a position that he cannot have proper control of the vehicle or have a full view of the road and traffic ahead."

 

15.  Regulation 110 provides:

"Mobile telephones

(1)     No person shall drive a motor vehicle on a road if he is using—

(a)     a hand-held mobile telephone; or

(b)     a hand-held device of a kind specified in paragraph (4)"

 

Schedule 2 to the Road Traffic Offenders Act 1988

16.   Schedule 2 to the Road Traffic Offenders Act 1988 provides that the offences under section 41D(a) are punishable by three penalty points and offences under section 41D(b) are punishable by 6 penalty points.

 

HEARING

17.  The Appeal was listed for hearing on 14 February 2025 by CVP. The hearing was attended by the Appellant, with counsel, Mr Flavin. There was no attendance by the Respondent.

 

 

DOCUMENTS

18.  The Tribunal has had an opportunity to consider a 26-page bundle. On the morning of the hearing, the Tribunal received a short document entitled "Respondents submission" and was also provided with the following documents by the Appellant on the morning of the hearing:

a.      The Fixed penalty (conditional offer)

b.      The Single Justice Procedure Notice (pages 1 and 2)

c.       The Traffic Offence Report - setting out the charges as "Driving not in position to have proper control - endorsable offence, contrary to regulation 104 of the Road Vehicles (Construction and Use) Regulations 1986, section 41D of the Road Traffic Act 1988 and Schedule 2 to the Road Traffic Offenders Act 1988" (offence code RC86814) and not regulation 110 which is use of a mobile phone.

d.     References from the following driving instructors:

                                                              i.      Imogen Carter (Imogen Blue Driver Training)

                                                            ii.      Reference from Callum Robinson (Learn with Cal)

e.      Standards Report

 

Appellant's Submissions

19.  The Appellant attended the hearing represented by Mr Flavin from counsel at the hearing.

20.  Within his written submissions, the Appellant contends that:

a.       the DVSA did not give due and careful consideration to the representations submitted by him on 22 May 2024. He states that: a) the DVSA can only start to consider the representations 28 days after the letter of 24 April 2024 and that there was insufficient time for due consideration to be given between the end of the 28-day period and the date of the decision, and b) no reasons were provided.

b.      He is considering making an application to change the plea entered on 18 April 2024 or to appeal the decision to prosecute/convict.

c.       The Appellant states that he intended to accept the fixed penalty on 2 April 2023 and paid the fine at that time.

d.     The Single Justice Procedure Notice refers to "no licence having been submitted for endorsement "and that he was never required to do this.

e.      He was not required to submit his licence on accepting the fixed penalty.

f.        He is on the verge of losing his livelihood due to a technicality.

g.      He has no previous convictions and has been a driving instructor for 4 years and held a full UK driving licence of 17 years.

h.      He is a fit and proper person.

21.  Mr Flavin took the Tribunal through the history of the matter. There was some concern about the information that the Appellant had been expected to provide following the conditional offer. However, the Appellant accepts that he failed to provide details of his licence. The Tribunal expressed some concerns over whether the Appellant had been opportunistic in failing to do so as the Appellant may have considered that it would be advantageous to him if the points were not endorsed on his licence. The Appellant confirmed that was not his intention and that it had purely been a misunderstanding.

22.  On the same basis, the Tribunal raised concern about whether the Appellant had then taken a similar approach by not taking any action in response to the Single Justice Procedure Notice which clearly required a response. Again, this was explained on the basis that the Appellant had thought the notice was in error due to him having accepted the conditional offer.

23.   The Tribunal raised concerns in relation to the precise details of the offence committed and whether, in fact, it had been an offence that was appropriate for punishment with a six-point penalty. It was noted, however, that in the Traffic Offence Report the charge was brought under section 41D as the Appellant had been holding his phone and looking down and talking (regulation 104) and not using a mobile phone whilst driving (regulation 110).

24.  The circumstances in which the Appellant pleaded guilty were discussed. Mr Flavin explained that the Appellant had not really understood the process and that he thought he was pleading guilty to the charge set out in the conditional offer and not to the details set out in the police officer in the Traffic Offence Report. Mr Flavin explains that the Appellant denies using his phone but that he had picked it up, having seen a message on his hands-free device from the pupil he was on his way to collect, and that the Appellant was looking for a safe place to stop. Mr Flavin emphasised that the evidence has not been tested.

25.  Mr Flavin referred to the Approved driving instructor guide ("ADI Guide") (at Approved driving instructor (ADI) register guide - GOV.UK) and indicated that he was not aware of a definition of a "fit and proper" person and that it was the Appellant's view that the Respondent had not properly exercised its discretion. He referred to the timeline in that he considered that the Respondent had dealt with the matter quickly following the 28 period set out in section 128(4) and referred to in the email dated 24 April 2024.

26.  Mr Flavin indicated that the Respondent's process in notifying the Appellant of his removal from the register appears to be that removal is automatic where a six-point penalty has been imposed, this is particularly as other no real reasons have been provided by the Respondent within the decision notice.

27.  Finally, Mr Flavin expressed the view that if the Appellant had obtained legal assistance earlier on, the present situation may not have arisen. He then outlined how the Appellant would lose his livelihood if his name were removed from the register and that he has an excellent record save for this event. He referred to the references that have been provided and added that the Appellant had hoped to set up his own driving school and that the ramifications for him are serious.

28.  Mr Flavin invited the Tribunal to exercise its discretion in the Appellant's favour.

29.  Mr Flavin did indicate that he would forward further documentation to the Tribunal following the hearing (to include page 3 of the Single Justice Procedure Notice). At the time of writing this decision, no further emails had been received. However, the Tribunal is satisfied that it has sufficient information for the Appeal to be decided fairly.

Respondent's Submissions

30.  The Respondent has provided the Tribunal with a statement. In addition to confirming some of the matters above, it sets out:

a.      The Appellant's name was first entered in the register in February 2021. Pursuant to section 126 of the Act, registration last for a period of four years. Therefore, it would have expired at the end of February 2025.

b.      The nature of the representations received from the Appellant dated 22 May 2024 which included that the Appellant had no previous convictions and had picked up his mobile phone whilst driving to collect a pupil for a driving lesson and was looking for a safe place to stop when he was seen by a police officer.

c.       The reasons for concluding that the Appellant is not a fit and proper person to have his name on the register which are:

                                                              i.      The Appellant's driving licence is endorsed with six penalty points, Having been convicted for "breach of requirements to control the vehicle, mobile telephones and so on".

                                                            ii.      The conditions for entry onto the register extend beyond instructional ability.

                                                         iii.      An approved driving instructor is expected to have standards of driving and behaviour above that of the ordinary motorist.

                                                         iv.      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 and a keen regard for road safety. In committing this offence, the registrar does not believe that the appellant displayed the level of responsibility or commitment to improving road safety that would be expected to be seen from a professional approved driving instructor.

                                                            v.      The registrar does not consider that motoring offences of this nature can be condoned. To do so would be to sanction such behaviour.

                                                         vi.      It would be offensive to other approved driving instructors who had been scrupulous in observing the law for him to ignore this recent and relevant motoring offence.

31.  The Respondents submission received by email on the morning of the hearing did not progress matters beyond the above and did not deal with the question of whether any regard had been given to the Appellant's circumstances and, in particular, the fact that he had initially been offered 3 penalty points in place of three and, therefore, that the offence for which he was convicted was an offence for which 3 points would have been appropriate.

Decision

32.  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 ADI Registrar's decision as the person tasked by Parliament with making such decisions. The burden of proof in satisfying the Tribunal that the ADI Registrar's decision was wrong rests with the Appellant.

33.  The Tribunal notes the Appellant's reasons for the appeal and the Respondent's response. The Respondent's reasoning specifically refers to the Appellant's driving licence having been endorsed with six penalty points which seems to be a key part of the reasoning. It is not clear that the Respondent gave any further consideration to the Appellant's circumstances.

34.  Whilst the Tribunal accepts that the offence committed is not to be condoned and it is important that neither the Tribunal nor the Respondent is seen to sanction such behaviour, driving instructors have to be treated fairly.

35.  It would appear to the Tribunal that the driving offence itself was one which would, ordinarily, have attracted three penalty points, as is noted from the Appellant's indication that he was offered a fixed penalty which he attempted to accept by paying the fine.

36.  As the Respondent did not attend the hearing it was not possible for further enquiries to be made of the Respondent during the hearing. It appears from the documentation provided that the reason he was given 6 points was due to his failure to complete the documentation. Whilst he failed to follow the correct procedure and it may have been appropriate for his penalty to be increased as a result, the additional points were not awarded due to the nature of his driving. The Tribunal considers that if the Appellant had properly accepted the fixed penalty offered, his name would not have been removed from the register.

37.  However, the Tribunal did have some concerns that if the Appellant had deliberately failed to complete the documentation to avoid the penalty points being endorsed that this, in itself, would cause concern as to whether he was a fit and proper person. The Appellant reassured the Tribunal that it was not intentional, and this was accepted.

38.  Therefore, the Tribunal considers the driving offence committed was one which would ordinarily attract a penalty of 3 points, which would not have resulted in his name being removed from the register. Additionally, whilst the Appellant erred in failing to properly accept the conditional offer or respond to the Single Justice Procedure Notice, as this was not intentional, these are not matters that should result in a removal from the register.

39.  The Tribunal has considered the references provided, the Appellant's Standard Report together with the details of the offence and his failure to comply with the requirements of the conditional offer made to him on 2 March 2023 and concludes that the Appellant remains a "fit and proper" person to act as a driving instructor. The Tribunal considers that it is appropriate for the Appellant's name to be restored to the register. However, it is noted that the Appellant's registration is due to be removed from the register at the end of this month unless the Appellant applies for the retention of his name on the register under section 126(2) before the end of February 2025.

 

District Judge R Watkin