First-tier Tribunal (General Regulatory Chamber)

Neutral Citation Number: [2025] UKFTT 252 (GRC)

Case Reference: D/2024/111

First-tier Tribunal

General Regulatory Chamber

Transport

 

Heard by way of remote hearing using Cloud Video Platform  

 

Heard on: 5 December 2024

Decision given on: 21 February 2025

Before

 

TRIBUNAL JUDGE KENNETH MULLAN

TRIBUNAL MEMBER RICHARD FRY

TRIBUNAL MEMBER GARY ROANTREE

 

Between

 

 

Anthony Denyer-Green

Appellant

and

 

REGISTRAR OF APPROVED DRIVING INSTRUCTORS

Respondent

Representation:

For the Appellant: The Appellant appeared in person

For the Respondent: Mr Russell

 

Decision: The appeal is ALLOWED

 

 

 

 

 

REASONS

 

Mode of Hearing

 

1. The proceedings were held using CVP. The parties joined remotely. The tribunal was satisfied that it was fair and just to conduct the hearing this way.

                                                           

BACKGROUND

 

2. The appeal is against the decision of the Registrar of Approved Driving Instructors (ADIs) that the Appellant could not satisfy the statutory requirement to be a "fit and proper person", with the result that the name of the Appellant was removed from the Register under s. 128(2)(e) of the Road Traffic Act 1988 ["the Act"] The burden of proving that an Appellant is not a fit and proper person is on the Registrar.

 

3. Conditions for entry or retention on the Register extend beyond instructional ability alone and require that the applicant be a fit and proper person.  As such, account has to be taken of an applicant's 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.

 

4. Given that many pupils are just 17 years of age and the scheme as a whole relies upon the honesty, integrity and probity of ADIs, it is clear that substantial trust will be placed in ADIs by pupils, parents, other ADIs and road users, the public and the Agency. It is the Registrar's function to ensure that the persons whose names appear in the register are worthy of that trust and are fit and proper persons to have their names entered therein.

 

5. 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 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.

 

6. Additionally, in cases involving non-motoring offences, the standing of the register could be substantially diminished, and the public's confidence 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. Indeed, it would be unfair to others who have been scrupulous in their behaviour, and in observing the law, if such matters were ignored or overlooked.

 

7. In the Registrar's statement of case he points out that registration represents official approval; the title prescribed for use by instructors is 'Driver & Vehicle Standards Agency Approved Driving Instructor', ["ADI"].  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, he expressed concern that the good name of the Register would be tarnished and the public's confidence undermined if it was generally known that he had allowed the Appellant's name to be retained on the Register.  He added that it would be offensive to other ADIs and persons trying to qualify as ADIs, who had been scrupulous in observing the law to ignore the inappropriate and unprofessional conduct displayed by the Appellant. The Registrar's approach was approved by the Court of Appeal in Harris v. Registrar of Approved Driving Instructors (2010 EWCA Civ 808), in which Richards LJ said:-

          "..... 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 .....the maintenance of public confidence in the register is important.  For that purpose the Registrar must be in a position to carry out his function of scrutiny effectively, including consideration of the implications of any convictions of an applicant or a registered ADI.  That is why there are stringent disclosure requirements."

8.                         Applicants to become driving instructors are notified that the DVSA is entitled to ask for information about spent convictions and as a result they lose the protection provided by s.4(2) of the Rehabilitation of Offenders Act 1974. This arises in consequence of paragraph 3(a)(ii) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 as amended which states that "none of the provisions of s.4(2) of the Act shall apply in relation to ... any question asked ... in order to assess the suitability ... of the person to whom the question relates for any office or employment specified in Part II of the said Schedule 1 ... where the person questioned is informed at the time the question is asked that, by virtue of this Order, spent convictions are to be disclosed". Paragraph 14 of Part II of Schedule 1 states that "offices, employment and work" include "any work which is work in a regulated position" and by Part IV of Schedule 1 "regulated position" is "a position which is a regulated position for the purposes of Part II of the Criminal Justice and Court Services Act 2000".  Paragraph 36(c) of Part II of the latter Act provides that "the regulated positions for the purposes of this Part are ... a position whose normal duties include caring for, training, supervising or being in sole charge of children"; and by paragraph 42 of Part II "child" means a person under the age of 18.  Since driving instructors may teach pupils aged 17 (or 16 if disabled) it follows that the DVSA is entitled to take spent convictions into account.

 

9. The background to this appeal is that the Appellant's name was first entered in the Register in December 2014 and in the normal course of events his certificate would have expired on the last day of December 2016.

 

10. In the Registrar's statement of case, the Registrar has noted that on 23 September 2023, he received an email from the stepfather of a 16-year-old girl, the biological child of the Appellant, alleging that the Appellant had allowed his daughter to drive on public roads in his AA vehicle with two half siblings also present in the vehicle. The complainant had also contacted the police and the AA Driving School. We address the source and content of the email of 23 September 2023 below.

 

11. By way of a letter dated 23 October 2023, the Registrar advised the Appellant of the complaint and asking him to respond to the allegations which had been made.

 

12. The Appellant responded by way of email correspondence dated 2 November 2023. We set out the details of his response below.

 

13. The Registrar advised the complainant of the Appellant's response. In further emails dated 16 November 2023 and 1 December 2023 from the complainant, the Registrar was advised that a formal report had been submitted to the police.

 

14. In light of this background, the registrar considered that the Appellant was not a fit and proper person to have his name retained in the Register.

 

15. By way of email correspondence dated 12 December 2023, the Registrar gave the Appellant written notice that he was considering removing the Appellant's name from the Register on the grounds that the Registrar could not be satisfied that the Appellant continued to fulfil the condition of being a 'fit and proper person'. The Registrar invited the Appellant to make representations within 28 days and was informed that the Registrar would take these representations into consideration before reaching a decision.

 

16. The Registrar subsequently received email correspondence dated 18 December 2023 and 2 January 2024 from the Appellant which set out his representations to the Registrar. We set out the detail of those representations below

 

17. At paragraph 9 of his statement of case, the Registrar indicates that he had carefully considered the representations made by and on behalf of the Appellant but had come to the conclusion that the Appellant's name should not be entered onto the Register. The Registrar indicated that he had considered the representations which had been made. The Registrar noted the following:

 

'I carefully considered the representations made and find it exceptionally disappointing that he failed to fully respond when I first wrote to him and only when further evidence was produced that he accepted that he allowed his 16-year-old unlicenced and uninsured daughter to drive on a public road. I find it hard to accept that a professional ADI knowingly exposed his daughter to these risks.'

 

18. The Registrar considered, therefore, that the Appellant could not fulfil the conditions set out in section 128(1)(e) of the Act in that he ceased, apart from fulfilment of any of the preceding conditions to be a 'fit and proper' person to have his name retained in the Register.

 

19. The Appellant was notified of the Registrar's decision on 12 January 2024.

 

20. An appeal against the decision of the Registrar was subsequently received in the office of the General Regulatory Chamber (GRC) of the First-tier Tribunal.

 

The decision-making process in more detail

 

The original complaint

 

21. The original complaint was received by way of email correspondence from the husband of the Appellant's ex-wife. We return to that relationship below. The complaint sets out in some detail his version of events which took place on 27 July 2023. He notes that his stepdaughter spent the day with the Appellant on that day together with two other children and had set off in his car. He described the route which the Appellant had taken and stated that the Appellant had stopped the vehicle and then permitted his 16-year-old daughter to drive on the public highway. He stated that this 'was confirmed with a conversation with my wife and her daughter.' He indicated that his wife had telephoned her daughter and was concerned that she was driving. When the Appellant's daughter returned home, she had a 'conversation' with her mother which was recorded. The complainant noted the illegality of his stepdaughter driving, the risks to her, the other children and the public. He stated that he had reported the incident to the police and Appellant's driving school.

 

The Appellant's initial response to the complaint

 

22. In paragraph 6 of the statement of case, the registrar summarised the Appellant's initial response to the complaint as follows:

 

'By way of an e-mail dated the 02 November 2023, the Appellant responded stating, I was incredibly shocked to receive your e-mail and hurt to read the allegations made. I have worked as an ADI for nearly 10 years and pride myself on delivering a high quality safe and

professional service to all my pupils also delivering Instructor training which I believe is reflected in my results. The complaint made is malicious and vexatious and as you are aware from the letter attached to your mail has been made by my ex-wife and her husband.

There is an ongoing campaign of harassment and intimidation by them against me which has included an attempt by my ex-wife to force entry into my home, verbal abuse in public and across social media and threats of violence. They have previous fabricated that social services have banned me from seeing my children. I hope this provides some background of the behaviours they display and how challenging the situation is. Unfortunately, it would seem this targeted behaviour abuse has now moved to affect my career and livelihood. Whilst I am hurt to receive this complaint, I would like to thank you for bringing it to my attention. I have previously sought police advice over these behaviours they advised to keep records of all incidents and this complaint will be added to my records. I am sorry that you have been involved in this and apologise for any inconvenience caused.'

 

The complainant's further response

 

23. In email correspondence dated 16 November 2023, the complainant challenged aspects of the Appellant's initial response to the complaint. He noted that the conversation in which the Appellant's daughter had 'confessed' to 'illegal driving' had been recorded on a mobile device. He reiterated that he was going to take the matter to the police.

 

The Appellant's written representations to the Registrar

 

24. In email correspondence dated 19 December 2023, a solicitor indicated that her firm had been instructed in connection with the matter and attached a document setting out the Appellant's written representations to the Registrar. 

 

25. The Appellant stated that his email correspondence of 16 November 2023 '... reflected my concern that acrimony with my ex-wife and partner, had reached that stage which it had.' He asserted that the complaint had been made to cause issues in his professional life and to damage the relationship with his children.

 

26. The Appellant provided a context for the relationship which he had with his daughter which had been difficult because he had been in the army during her early childhood and because of the problematic relationship with his ex-wife. He stated that he did not wish this to distract from the matter in hand.

 

27. Turning to the substantive issue, the Appellant accepted that permitting his daughter to drive on a public road (albeit a quiet area, in broad daylight, and for a very short time) amounted to a serious lack of judgment. He asserted that it had not been pre-planned and that, initially, he had intended to show her a route she could travel on her moped when she was coming to see him. He had enjoyed spending the day with her away from the 'stressful and upsetting family situation, and it was in that context that he offered to let her drive. He observed that he was in his AA marked vehicle which would have indicated that it was a learner vehicle and alerted other cars and people. He also had the dual control function. She had driven for less than half a mile. He had experience of conducting under-17 driving experiences with the AA and believed that all risks had been minimised.

 

28. He stated:

 

'I am extremely regretful and embarrassed for these actions, I understand what the consequences could have been due to lack of licence and insurance.'

 

29. The Appellant noted that he had been a professional ADI since 2015 and had no formal complaints or issues raised with the Registrar. He loved his job and considered it a privilege to provide driving instruction. He prided himself on upholding ADI standards and his pupils would attest to that. He ensured that every aspect of his work as an instructor was to the appropriate standard and to uphold the integrity of the Register. He was 'devastated that this single incident risks undermining my ability to work and my professional reputation. He has signed up to the Code of Practice and was a member of the DIA and ADINJC. He had initiated a pupil survey in order to obtain feedback from his pupils.

 

30. He wished to apologise formally for the incident. He urged the Registrar to regard it as 'unrelated and unrepresentative' of him as an instructor. It was an isolated incident which would not be repeated. He was very concerned that the incident would put his profession and livelihood at risk as he relied on the income to support his children and his wife.

 

31. In further email correspondence dated 3 January 2024, the Appellant attached links to the survey of his pupils., noted above.

 

The Registrar's decision

 

32. As was noted above, in correspondence dated 12 January 2024, the Registrar decided that that the Appellant could not fulfil the conditions set out in section 128(1)(e) of the Act in that he ceased, apart from fulfilment of any of the preceding conditions to be a 'fit and proper' person to have his name retained in the Register.

 

The notice of appeal

 

33. In the notice of appeal, the Appellant set out grounds of appeal which were parallel to the submissions in his written representations to the Registrar.

 

34. The Appellant provided further details of the circumstances in which his daughter came to drive his vehicle. He submitted that in relying on an audio recording provided by his ex-wife's partner, the Registrar had failed to consider that the answers given by his daughter were in response to leading questions put to his daughter by her mother and there were obvious risks of parental influence. As such, the evidence in the recording should be regarded as unsafe.

 

35.  His understanding was that the police were not going to take any further action to instigate a prosecution. It was not known how many penalty points might have been imposed if he had been prosecuted and he should not, accordingly, be put in a position which was worse off.

 

36. In stating in his first response to the Registrar that the complaint was malicious and vexatious, and that there had been a campaign of harassment and intimidation against him, this was against a background of emotional distress. He apologised for his failure to concentrate on the substantive incident.

 

37. The Appellant repeated the details of his professional career in driving instruction and submitted, once again, that it was an isolated incident which was not representative of him.

 

38. The Appellant's representative attached several decisions of the GRC and made submissions in connection with them.

 

The remote oral hearing

 

39. At the oral hearing, Mr Russell appeared on behalf of the Registrar. He outlined the Registrar's case, summarising the background to the Registrar's decision to disallow the application and remove the Appellant's name from the Register of Approved Driving Instructors. That background was set out in more detail in paragraphs 1 to 9 of the Statement of Case. Mr Russell also summarised the reasons for the Registrar's decision to remove the Appellant's name from the Register of Approved Driving Instructors. These were:

 

(a)              Whilst I accept that the Appellant has not been convicted of any offence at this time, he knowingly allowed his 16-year-old daughter to drive unlicenced and uninsured on a public road and when requested to provide a response to the allegation made, responded that it was a malicious and vexatious allegation. The conditions for entry onto the Register extend beyond instructional ability alone and require that the applicant is a fit and proper person. As such account is taken of a person's character, behaviour and standard of conduct. Anyone who is an Approved Driving Instructor (ADI) is expected to have standards of driving and behaviour above that of the ordinary motorist. Teaching (generally) young people to drive as a profession is a responsible and demanding task that should only be entrusted to those with high standards and a keen regard for road safety. The Registrar believed that he would be failing in his public duty if he allowed a person, who had been convicted of the most recent offence, having been previously warned about his conduct, to have his name retained in the Register.

(b)             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, the Registrar was concerned that the good name of the Register would be tarnished and the public's confidence undermined if it was generally known that the Registrar had allowed the Appellant's name to be retained in the Register.

(c)              As an officer of the Secretary of State charged with compiling and maintaining the Register on his behalf, the Registrar did not consider that he could condone the Appellant's behavior. To do so would effectively sanction such behaviour, if those who transgress were allowed to remain on an official Register that allows them to teach others.

(d)             It would be offensive to other ADIs, and persons trying to qualify as ADIs, who had been scrupulous in observing the law, for the Registrar to ignore the inappropriate and unprofessional conduct displayed by the Appellant.

 

40. We also observe, at this point, that at paragraph 3 of the statement of case, the Registrar stated the following:

 

'As the Regulator of Approved Driving Instructors' my primary role is to ensure that instruction provided by ADI's meets the required standard and that all ADI's have met and continue to meet the fit and proper criteria to have their names entered and retained in the register. I also expect ADI's to adhere to professional standards and business ethics when dealing with their customers. The driver training industry have a code of practice which I fully endorse, however this is a voluntary code and I have no legislative power to enforce ADI's to sign up to the code nor can I always take action if they do so then choose to flout the framework of the code. (D1) I receive many complaints from dissatisfied customers and equally concerning complaints regarding the unprofessional and inappropriate behaviour of ADI's.'

 

41. The Appellant gave oral evidence and made submissions which were parallel to those set out in his written representations to the Registrar and in his notice of appeal.

 

REASONS

 

42. In paragraphs 2 to 9 above, we set out in some detail the significance of the statutory requirement that a Registrant (or aspiring Registrant) satisfies the requirement to have their name retained in (or entered in) the Register of Approved Driving Instructors (ADIs). We observed that conditions for entry or retention extended beyond instructional ability alone, and account has to be taken of a Registrant's character, behaviour and standards of conduct. We noted the substantial trust placed in the integrity of the Register and ADIs by pupils, parents, other ADIs and road users, the public and the Agency. We described the key function of the Registrar in ensuring that those whose names appear in the Register are worthy of the trust which has been placed in them.

 

43. Against that background, the Registrar's case for the removal of the Appellant's name from the Register is powerful.  The Appellant's behaviour in permitting his (then) 16 year-old daughter to drive his driving school vehicle on a public road when two other children were in the vehicle was foolish and irresponsible in the extreme.

 

44. In paragraph 5 above, we have observed that:

 

'... 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 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.

 

45. In our view, permitting a 16 year-old, who has a limited driving licence, is uninsured, and an inexperienced driver, to drive on a public road, is not reflective of standards of driving above that of the ordinary motorist.

 

46. The Appellant pleads in mitigation that the drive was not pre-planned, was for a very short period, was in his driving school vehicle with dual control functions, and on a quiet rural road with full visibility. He had quickly realized the mistake which he had made, stopped the vehicle and resumed full control. There had been no prosecution and if there had been then it would have been unlikely that he would have accumulated sufficient penalty points to warrant the removal of his name from the Register.

 

47. The Appellant added that he had been an ADI since 2015 and there were no other complaints or issues with his registration. He provided details of his military background and noted that he was a Driving Instructor Trainer and constantly promoted ADI standards. He was a peer and mentor to many PDIs in his local area. He launched and ran an annual 'Under 17s' driving experience event. He has achieved good results with his pupils.

 

48. He has submitted that:

 

'I am devastated that this single incident risks undermining my ability to work and my professional reputation.'

 

49. We asked the Appellant to comment on aspects of his initial response to the complaint which had been received by the Registrar, as Follows:

 

'I was incredibly shocked to receive your e-mail and hurt to read the allegations made. I have worked as an ADI for nearly 10 years and pride myself on delivering a high quality safe and professional service to all my pupils also delivering Instructor training which I believe is reflected in my results. The complaint made is malicious and vexatious and as you are aware from the letter attached to your mail has been made by my ex-wife and her husband.

There is an ongoing campaign of harassment and intimidation by them against me which has included an attempt by my ex-wife to force entry into my home, verbal abuse in public and across social media and threats of violence. They have previous fabricated that social services have banned me from seeing my children. I hope this provides some background of the behaviours they display and how challenging the situation is. Unfortunately, it would seem this targeted behaviour abuse has now moved to affect my career and livelihood.'

 

50. The Appellant's response was that he had used the phrase 'malicious and vexatious' because he had been too focused on the background and context of the incident. He described this background and context in some detail. He has now accepted that he should have focused on the incident itself i.e. permitting his daughter to drive rather than the wider, more emotional perspective.  

 

51. We have observed that the initial complaint was received from the Appellant's ex-wife's partner, that it was followed up with further correspondence and the submission of a telephone recording. We have listened to the recording and have afforded it little weight. The Appellant's daughter was asked several questions which, in evidential terms, were 'leading.' Further, it is obvious that the Appellant's daughter was unaware that the conversation was being recorded.

 

52. We accept that there is background context to much of what happened and that the Appellant's relationship with his ex-wife is acrimonious. We note that the Appellant's daughter is now living with him.

 

53. Having weighed up all the relevant factors, we accept that, on balance, the appeal should be allowed.

 

54. We would ask the Appellant to note the following. We repeat that his actions in permitting his then 16 year-old daughter to drive on a public road in his driving school vehicle when two other children were in the vehicle was foolish and irresponsible in the extreme. The Appellant has come very close to losing his professional career and employment, a profession in which he has made a strong investment. It should be self-evident that there are significant learning outcomes from this process and that any future legal or professional transgressions are likely to have considerable adverse consequences.       

 

 

Kenneth Mullan

Judge of the Upper Tribunal

21 February 2025