Safiyya Baig v Registrar of Approved Driving Instructors

Introduction

1. This appeal concerns a decision of the Registrar of Approved Driving Instructors (“the Registrar”) made on 19 February 2024 to remove the Appellant’s name from the Register of Approved Driving Instructors (the “Register”). The decision was taken on the grounds that the Appellant had failed to pass the test of continued ability and fitness to give instruction to be an Approved Driving Instructor (“ADI”). The Registrar directed that the decision would not take immediate effect.

2. The proceedings were held by video (CVP). There was a 10 minute or so delay in the start of the proceedings whilst awaiting the Appellant to join the hearing. Both parties joined remotely. The Tribunal was satisfied that it was fair and just to conduct the hearing in this way. The Appeal

3. The Appellant’s Notice of Appeal dated 28 February 2024 relies on the grounds that: (a) There are three attempts to pass standard checks. The Appellant has had two attempts and could not appear in the third attempt for reasons not attributable to themselves. (b) The Appellant did not receive the email confirming the third test. The Appellant was not expecting the email because they understood the DVSA was clearing its backlog and only organising tests for Part 2 and 3 of the qualifying examination. (c) The Appellant has always attended all the tests, trainings, web-seminars in the past. Their ADI badge was issued after completing the requisite professional and additional training as set by the DVSA. She completed a further 2-day training course titled “Train the Trainer & ORDIT” in February 2024. (d) The Appellant will appear in the test when intimated.

4. The Registrar’s Statement of Case dated 31 January 2025 resists the appeal. The Registrar says that: (a) On two occasions (10 May 2023 and 19 September 2023) the Appellant failed to reach the required standard in tests of continued ability and fitness to give instruction. The Appellant was advised to consider seeking further personal development to address the Examiner’s findings. (b) On each of the first two tests, the Appellant was advised of their shortcomings in order to give opportunity to consider these and to improve their standard of instruction. The Appellant failed to attend a further test booked on 1 September 2023 and cancelled a test booked on 10 August 2023. (c) The Registrar considered that the Appellant had been given adequate opportunity to pass the test but failed to do so. In the interests of road safety and consumer protection the Registrar felt obliged to remove the Appellant’s name from the Register. The Appellant had failed to satisfy the Registrar that their ability to give driving instruction was of a satisfactory standard. The Law

5. Entry of a person’s name in the Register is subject to the conditions set out in section 125(5) of the Road Traffic Act 1988 (“ the Act ”). Under section 128 of the Act the Registrar may remove the name of a person from the Register if satisfied that they do not fulfil the relevant conditions. One of those conditions, at section 128(2) (d), is that they have failed to pass a test of continued ability and fitness to give instruction. Under section 125(5) (a)(i), a person whose name is in the Register must submit to a test of continued ability and fitness to give instruction in the driving of motor cars, if required at any time to do so by the Registrar.

6. 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 (in accordance with R. (Hope and Glory Public House Ltd) v City of Westminster Magistrates Court & Ors [2011] EWCA Civ 31 ). The Evidence

7. We have considered a bundle of evidence containing 27 pages along with the oral submissions made at the hearing. The registration has continued pending the outcome of this appeal. Submissions Made

8. At the hearing, Mr Heard summarised the Registrar’s statement of case. He added that the law only requires one attempt at the “standards check” as it is commonly known. However, it is the usual practice of the Registrar to give a reasonable chance to demonstrate the required standard and to allow 3 attempts. In answer to the Tribunal’s questions, Mr Heard said that he was not aware of any specific reason to have triggered the requirement for a standards check in this case. The Registrar prioritises ADIs who are recently qualified and that is the most likely reason.

9. The Appellant submitted that three standards checks are allowed. She should be allowed to carry on teaching and to undertake her third attempt. She had never received an email notifying her of the test on 13 December 2023. The Registrar needs to also send a letter or text.

10. The Appellant said that she is very good at teaching. Being an ADI is her job and livelihood, which took a lot of effort and money to achieve. She queried why so many other ADIs have never had a standards check in 10 years whereas her check was within 4 years. The Appellant does not say that she is being discriminated against but believes she is being “targeted” over the way that she dresses. She does not understand why.

11. In response to this accusation, Mr Heard reiterated that newly qualified ADIs are prioritised for standards checks or if anything else has been flagged. He is unaware of anything being flagged in Mrs Baig’s case. The Registrar does not discriminate or target anyone. His concern is for road safety. Relevant Facts

12. The Appellant’s name was first entered in the Register in May 2021. In the normal course of events their current certificate of registration was due to expire on 31 May 2025.

13. The Appellant has failed the test of continued ability and fitness to give instruction on two separate occasions. Following each failed test the Appellant was notified of the Examiner’s findings during a debrief conducted at the end of the assessment.

14. The Registrar has produced a letter dated 20 September 2023 informing the Appellant that she was required to take a further standards check on 13 December 2023. The Appellant failed to attend the test. The Appellant states that she did not receive the letter.

15. The Appellant had previously failed to attend a test on 1 September 2023 and cancelled a test booked for 10 August 2023.

16. In a letter sent by email on 18 January 2024, the Registrar advised the Appellant that he was considering removing her name from the Register because he could no longer be satisfied that her ability to give driving instruction was of a satisfactory standard. The Appellant was given 28 days to make representations.

17. The Appellant made representations by email on 22 January 2024 corresponding with the grounds of appeal. In addition, the Appellant said that she had been passionately working and was rated amongst the best trainers. Since September 2023, the pass rate of her pupils had increased significantly. At this stage of life, and as a mother of four children, the Appellant cannot afford to change career. Removal of her name as an ADI would have serious negative implications to herself and entire family. The Appellant requested that her test be re-scheduled. Findings and C onclusions

18. The Appellant cancelled one test on 10 August 2023. On two other occasions (not one as indicated by the Registrar), the Appellant failed to attend test dates. One was on 1 September 2023, the other on 13 December 2023. Whilst the Appellant could not recall an appointment on 1 September 2023, this was before her failed second attempt at the standards check. It was the failure to attend on 13 December 2023 which prompted the Registrar’s decision to remove the Appellant’s name from the Register. Mr Heard confirmed at the hearing that a failure to attend a third test would be treated by the Registrar as “a fail”. The Registrar would look at the standards check history “holistically” in arriving at a decision to remove an ADI’s name.

19. Under section 128 of the Act , the Registrar may remove a person’s name from the Register if they failed to pass a single test. There is no legal requirement for the Registrar to allow three attempts, but having adopted this practice (which we agree to be reasonable) it should be applied fairly.

20. The most compelling argument advanced by the Appellant is that she did not receive notice of her third and final attempt to pass the standards check on 13 December 2023. She cannot be taken to have failed a third attempt if she did not know she was required to attend on the given date. Having heard from the Appellant, the Tribunal is satisfied that she did not receive the notification. A copy of the letter of notification dated 20 September 2023 is contained within the hearing bundle. However, no covering email is produced, and Mr Heard could not confirm that the letter was in fact sent to the Appellant by email with details of date, time and recipient. Nor could Mr Heard confirm the method used for delivery of previous check test appointments.

21. Mr Heard was also unable to say whether the Registrar had in place any follow-up mechanism after issuing the requirement to attend a standards check. The Appellant was insistent that she had not received any reminder by email, telephone or letter. Unless there was some such procedure in place, its strikes the Tribunal panel that there were no safeguards to ensure that the Appellant had fair notice of the test.

22. We further note that having failed two tests, the Appellant completed a 2-day advanced training course and pursued other steps to help improve her skills. They include sitting with other ADIs to see how they teach. Having taken such measures, it makes it increasingly unlikely that the Appellant would simply fail to attend her final attempt at the standards check.

23. In the particular circumstances of this case, we find that the Appellant has not yet been given reasonable opportunity to pass a test of continued ability and fitness to give instruction. It follows that we are not satisfied that the Appellant has failed to meet the condition of retention on the Register at section 128(2) (d) of the Act by failing to pass a test of which she did not have notice.

24. In making our findings, we find nothing untoward in the Appellant having been required to undertake a standards check. It is a process to be conducted by the Registrar “at any time” in furtherance of his statutory duty to maintain the Register. The Registrar must ensure that those who are registered ADIs continue to be fit and able to give instruction to the appropriate standard. From what we have seen and heard there is no basis whatsoever to suggest that the Appellant has been targeted for any reason other than being a relatively newly qualified ADI.

25. We conclude that the Registrar’s decision to remove the Appellant’s name from the Register as she had not passed a test of continued ability and fitness to give instruction, was incorrect. The appeal is allowed.