Hitchen, R (On the Application Of) v Oxford Magistrates Court [2015] EWHC 271 (Admin)

[2015] EWHC 271 (Admin)

Case No CO/16562/2013

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 19 January 2015

Strand

London WC2A 2LL

B e f o r e:

MRS JUSTICE SIMLER

Between

THE QUEEN ON THE APPLICATION OF HITCHENClaimant

OXFORD MAGISTRATES COURTDefendant

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street London EC4A 2DY

Tel No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

Ms T Jaber appeared for Claimant

Mr C Thomann (instructed by The Treasury Solicitor) appeared for Defendant

J U D G M E N T

Introduction

[1]MRS JUSTICE SIMLER: The claimant, Mrs Hitchen, is a 78-year old woman who was involved in a road traffic accident on 22 March 2012, in which she collided with a number of parked cars. The police officer who attended the scene notified the DVLA of a possible medical condition because he considered that she appeared confused and had lapses of concentration.

[2]By letter dated 26 September 2012, her driving licence was revoked by the DVLA (an executive agency of the Secretary of State for Transport, the interested party in these proceedings).

[3]The revocation was under section 93 of the Road Traffic Act 1988 on the basis of:

"Possible chronic obstructive pulmonary disease or an as yet undiagnosed medical condition."

[4]The claimant's appeal against that decision was rejected by the Oxford Magistrates Court on 2 August 2013, following a hearing in May and August of that year. This application for judicial review, issued on 31 October 2013 following refusal by the magistrates to state a case to the High Court, seeks to challenge as unlawful the Oxford Magistrates Court's decision refusing her appeal.

[5]Although originally four grounds for judicial review were pursued, at an oral hearing on 5 June 2014 I gave permission to apply for judicial review in relation to three only of those grounds.

[6]Before me, the claimant has been represented by Mr Hugh Tomlinson QC and the Secretary of State for Transport, the interested party in circumstances where the defendant magistrates court have played no part, has been represented by Mr Collin Thomann. I am grateful to both counsel for their helpful, focused submissions.

[7]It is agreed that the issues that accordingly arise for consideration are as follows:(i) whether the defendant magistrates court erred in law in applying a reasonableness standard of review to this appeal;

(ii) whether there was a failure to consider the statutory requirement under section 92(2) of the Road Traffic Act 1988 that the licence holder have a disability likely to cause the driving of a vehicle by her to be dangerous; and

(iii) whether the magistrates acted irrationally in ignoring or excluding evidence presented by the claimant after the revocation of her licence on the basis that it was not indicative of her condition on the day of revocation. The factual background

[8]On 22 March 2012 the claimant was driving near her home on a route well known to her. At a cross roads at which she did not have right of way she failed to notice an approaching vehicle. She proceeded into the intersection and, as a consequence, a collision occurred. This was her first car accident since 1985.

[9]The record of interview taken at the scene by the attending police officers recorded that she accepted responsibility for the accident and explained that the accident was "due to a lapse of concentration".

[10]Subsequently, she provided the following explanation to the DVLA. She said:

"[The] accident occurred at cross roads of two narrow residential roads with cars parked on both sides. Even with great care, it is extremely difficult to see approaching cars. As I crossed over I was suddenly struck with great force by an unseen vehicle and the impact was so severe and sudden that my foot was jammed on to the accelerator, causing me to crash into two parked cars. The only reason I accepted responsibility for the collision was because the other driver had right of way."

[11]The police officer who attended the accident notified the DVLA of a possible medical condition, not because he had identified any particular condition but because he noticed and concluded that the claimant appeared confused.

[12]The claimant was thereafter required to, and did, complete a DVLA medical fitness to drive form. In that form she identified chronic obstructive pulmonary disease (referred to as 'COPD') for which she was taking medication, but no other disabilities or medical conditions. A medical examination by her GP also identified no other disabilities or conditions.

[13]She was required to undertake a test of driving competence. This took place on 5 September 2012. The report prepared by the examiner highlighted two important lapses: the habitual omission of the use of mirrors at appropriate times, including when changing direction and crossing lanes -- a particular example of this was the blatant cutting across of the path of a transit van on the main carriageway, forcing it to break -- as well as the failure to make effective all round observations when reversing. The report also recorded a number of minor lapses.

[14]The claimant was given an overall assessment of grade C, which indicated an unsatisfactory driving performance. She did not score D in any category, which would have connoted dangerous driving actions that indicated that she was not safe to drive.

[15]In evidence subsequently given to the defendant magistrates the claimant explained that her unsatisfactory driving performance was due to the fact that she had taken her driving test many decades previously and that, while she had received a number of driving lessons, she was still underprepared for the assessment. She also said the test took her to very busy parts of Reading, whereas she is more familiar with driving in the countryside and on small town roads.

[16]By letter dated 26 September 2012, the claimant was notified that her driving licence was to be revoked. The author of the letter, Dr Pawley, the DVLA full time medical adviser, purported in that letter to "explain the medical reason for the decision". He noted deficiencies in the claimant's driving performance at the driving assessment and he said:

"I am unsure whether they are due to your chronic obstructive pulmonary disease or to an as yet undiagnosed medical condition. However, as they constitute a road safety issue, regrettably therefore I must recommend the revocation of your group 1 ordinary licence."

[17]The claimant was advised that if her GP felt that the problems identified were amenable to tuition she could be granted a provisional disability assessment licence followed by tuition from an approved driving instructor for a short period and an on-road driving assessment that would give her the opportunity to regain her licence. Her GP indicated agreement to this option and it was formally offered to her. Although she completed the necessary forms, by letter dated 28 November 2012 she withdrew, changing her mind, saying:

"As I am not disabled, physically or mentally, also confirmed by my GP, it is completely inappropriate for me to agree to such an examination."

[18]Following this, the claimant submitted her appeal against the revocation decision on the basis that there had been a failure to identify a relevant medical condition, and therefore disability, and there was therefore no basis on which to revoke her licence in the first place.

[19]The claimant was examined by and obtained a medical report from Dr John Collins, a consultant respiratory and general physician. The report is dated 12 March 2013. It addressed the claimant's COPD condition and concluded that this was not a condition that impaired her consciousness or that was such as would justify the withdrawal of her licence.

[20]By a letter which is wrongly dated 22 March 2013 but was sent to the claimant on 15 April, Mr Kenyon, on behalf of the DVLA, sought to explain further the basis upon which the licence had been revoked in the following terms:

"I should explain that the medical information obtained during the course of our medical enquiries, including the results of your previous driving appraisal, indicates that you may be experiencing problems with your cognition which, whilst not obvious during the course of performing day to day activities, may become evident when performing the complex task of driving. This was alluded to in correspondence sent to you following the revocation of your driving licence in September last year. I would advise that there is no single or simple marker or test for assessment of cognitive function. However, on-road driving assessments, which are only carried out at approved driving assessment centres, are considered an invaluable method of ensuring that there are no features present likely to cause the driver to be a source of danger. Such features can include visual inattention, easy distractibility and difficulty performing multiple tasks. In addition, it is important that reaction time, memory, concentration and confidence are adequate and do not show impairment likely to affect driving performance."

[21]Dr Collins' report was served on the DVLA, which responded by letter dated 9 May 2013. The DVLA letter made clear that the licence was not revoked on the basis of the COPD diagnosis or any liability to sudden attacks of disabling giddiness, but rather "because she was deemed to be suffering from a relevant disability". The letter continued:

"Viewing your client's case as a whole, including all of the background information and the faults demonstrated during the course of the driving appraisal that she underwent in September 2012, the medical adviser was of the view that your client represented a likely source of danger to both herself and other road users and it was on this basis that her licence was revoked."

[22]The letter said that this was in accordance with the relevant statutory provision which was section 93(1) of the Road Traffic Act.

[23]There was then a further letter, dated 17 May 2013, from the DVLA, which responded to an urgent email from the claimant's solicitor. He sought clear identification of the alleged disability. The DVLA replied:

"I would advise that a disability may exist through age related cognitive decline which may not present in day to day living or to clinicians at this stage and not until quite late in the disease process. However, driving is an extremely complex activity in a novel, constantly changing environment, with multiple changing situations that have to be processed quickly, effectively and safely. It is the advice of the Secretary of State's Honorary Medical Advisory Panel that driving may come to highlight these deficits at a much earlier stage. This was implied in our letter of 26 September 2012 in the phrase 'or to an as yet undiagnosed medical condition' ..."

[24]In response to the suggestion that the claimant was suffering from age related cognitive decline, arrangements were made for her to be examined by Dr Morgan. His specialisms include geriatric medicine and, in particular, dementia.

[25]He produced a report with appropriate declarations as to his overriding duty to the court and his compliance with that duty, dated 20 May 2013. In that report he recorded the examinations he undertook in relation to the claimant's cognitive ability. The claimant scored 30 out of 30 on the Mini Mental State Examination, MMSE, and 96 per cent in a test known as the Addenbrooke's test. He also undertook a mental capacity assessment, in which he concluded that the claimant demonstrated the ability to comprehend relevant information, to retain that information, to weigh relevant information to arrive at a choice and to communicate her decision. His expert assessment was that the claimant is a fit, active, elderly woman with "normal mental faculties" and that she has "no signs of age related cognitive decline which would cause her to be a hazard whilst driving a motor vehicle".

[26]Dr Morgan's report was served on the DVLA, which responded by letter dated 23 May 2013. Notwithstanding Dr Morgan's expert assessment, the DVLA maintained that the results of the on-road driving appraisal, undertaken in September 2012, showed that the claimant was unsafe to drive. The letter again referred to the minutes of the meeting of the Honorary Medical Advisory Panel in October 2012 dealing with cognitive impairment, reiterating that the Panel had stated that the most relevant assessment to determine whether a driver was able to drive safely in traffic was a functional assessment of ability by means of an on-road driving assessment or similar process. The DVLA confirmed that it did not require the attendance of Dr Morgan at the forthcoming appeal hearing before the Oxford magistrates.

[27]In a subsequent supplementary report, dated 17 June 2013, also presented to the defendant magistrates at the subsequent appeal, Dr Morgan reviewed the minutes of the Honorary Medical Advisory Panel referred to by the DVLA and also the Rookwood Driving Battery Test criteria. Having done so he expressed the following expert opinions: first, that his detailed assessment of the claimant's cognitive performance indicated no evidence of cognitive impairment. As a consequence, the information provided by the DVLA concerning minimal cognitive impairment and assessment of cognitively impaired drivers is not appropriate, since the claimant does not have evidence of cognitive impairment.

[28]Secondly, he concurred with Dr Pawley's opinion that driving is a complex task requiring the ability accurately to assimilate information from various sources, process information quickly and make judgments on appropriate actions. Cognitive evaluation is only considering one aspect of a person's capabilities when assessing driving competence.

[29]Thirdly, as to the Rookwood criteria, he said that many of the criteria are encompassed in the Addenbrooke's cognitive evaluation test. He said that the claimant's performance at the Addenbrooke's test was almost faultless and performed at reasonable speed. He said her visual spatial assessments were quick and accurate. This meant that her performance was entirely satisfactory and did not indicate underlying impairment of any nature.

[30]Fourthly, he said that his original assessment included a physical assessment in addition to cognitive evaluation. This included a neurological examination as well as a general medical examination. He said that the claimant's independent mobility made him certain that, within the limits of standard medical examination, her physical state was, at the time of her assessment, more than satisfactory to perform normal driving activity.

[31]Fifthly, he concluded that the claimant was physically and cognitively capable and did not show any features which suggest that she would be a hazard while driving a motor vehicle.

[32]The claimant's appeal was heard by the defendant magistrates on 28 May and 2 August 2013. Oral evidence was given by the claimant and by Dr Collins, oral evidence was given on behalf of the DVLA by Dr Pawley and the court had before it the medical reports of Dr Morgan just referred to.

[33]There is no note of the oral evidence given before the defendants but I have been provided with the proof of evidence of Dr Pawley in particular and I proceed on the basis that the evidence contained in the proof of this witness is the high point of his evidence.

[34]Dr Pawley did not examine the claimant at any stage. At paragraph 10 of his witness statement or proof he says:

"Based on the on-road driving assessment report, the claimant's ordinary licence was revoked by letter dated 26 September 2012."

[35]He says that the letter identified uncertainty as to whether the problems were due to COPD or an as yet undiagnosed medical condition. He explains that this was a reference to age related impairment and possible cognitive impairment related to driving that may not have been apparent on static clinical testing in the surgery or affecting someone in ordinary day to day living. His witness statement says:

"It was therefore deemed Mrs Hitchen was suffering from a relevant disability as defined."

[36]At paragraph 22, Dr Pawley makes reference to receipt of the reports from Dr Morgan and to the letter sent by the DVLA in response but, save for that reference, does not otherwise engage with or address the expert opinion expressed by Dr Morgan that was apparently not challenged by the DVLA.

[37]The conclusions reached by Dr Pawley are set out under the heading "points" at paragraphs 23 to 28. Having identified that driving is a complex task requiring the ability to accurately assimilate information from a variety of sources, to process this information quickly and accurately and make a judgment on the appropriate actions, Dr Pawley expresses the view that it is difficult to determine whether a driver can safely judge those issues on the basis of office based tests alone and that the best way of assessing a driver's ability to complete that set of tasks is in a practical on-road driving assessment.

[38]He goes on to say that the DVLA cannot discriminate solely on the grounds of age but he notes that it is recognised that age related problems and medical conditions, and that aging, causes affects on the relevant driver factors that affect driving performance. He says older drivers often have impaired awareness or ability to respond to other vehicles and to unusual road conditions. They may be unaware that their driving is impaired. He also states that older drivers have an increased rate of accidents per mile and are more likely to have accidents at junctions and roundabouts.

[39]It is apparent from his witness statement, accordingly, that Dr Pawley's decision to revoke in the claimant's case was not based on specific medical evidence related to her, identifying an underlying condition, whether age related or not, but against a background of well recognised age related problems that affect driving performance generally, together with statistics of an increased rate of accidents by older drivers, it was based on the claimant's performance in the driving assessment which he regarded as the most efficient and accurate method of determining driver safety, and an inference of disability based on that unsatisfactory driving in the circumstances.

[40]Also available to the defendants and relied on by them was the extract from the minutes of the Honorary Medical Advisory Panel on driving and psychiatric disorders, referred to in correspondence by the DVLA. Item 7 deals with minimal cognitive impairment and the assessment of cognitively impaired drivers. Because the minutes are relied on by the defendants, and indeed by the interested party in these proceedings, and although there is no agreement between the parties as to what meaning is to be gleaned from them -- which I shall return to below -- it is important to set out paragraphs 29 to 32 of those minutes:

"29. The Panel discussed a scenario of an elderly driver stopped by the Police for erratic driving and where a mild impairment of cognition was felt to have possibly been a factor. In the scenario reports from the driver's doctors did not highlight any formally diagnosed conditions however, objective on road driving assessment highlighted significant difficulties. Discussion took place as to whether a licence could be revoked on the basis of the driving performance or whether in the absence of a recognised diagnosis a recommendation to retain the licence would have to be made. The erratic driving may require disqualification by the Courts if there is no recognised medical cause apparent. Panel reiterated that age alone was not reason to remove a licence entitlement and never should be. 30. There was a wide ranging discussion around the various methods of assessment available to the clinician. Panel stated that the absence of a recorded diagnosis may not correlate with the absence of pathology, the index event being the first presentation of possible problems. It was noted that driving is a high level skill and that difficulties present in forward planning and the processing of the multiple, complex sensory inputs required for safe driving may pre-date the formal recognition and diagnosis of cognitive impairment or dementia by a doctor. The Panel indicated that the commonly used assessment tools, particularly those used by non-specialities e.g the Mini Mental State Examination (MMSE) rating skill were designed as screening tools for dementia and do not correlate with driving ability and have a limited role. 31. Cognitive abilities of particular relevance to safe driving are executive skills, frontal lobe function and the ability to forward plan particularly in new situations. These were not measured accurately by the MMSE rating scale. Panel indicated that the Addenbrooke's Cognitive Examination and Montreal Cognitive Assessment are probably better at assessing driving related functions. Panel stated that the most relevant assessment to determine whether a driver was able to drive safely in traffic was a functional assessment of ability by means of an on road driving assessment or similar process. Parallels were drawn with the assessment of commercial pilots and use of simulators in assessing performance. 32. The MMSE rating scale is dependant on a subject's language skills and pre-morbid functioning. A subject with a high level of pre-morbid function may still experience a significant loss in function before it becomes apparent via the rating scale."

[41]The defendant magistrates dismissed the appeal on 2 August 2013. They prepared a document headed "factors taken into account in reaching our decision". In the absence of a stated case, the reasoning and conclusions of the defendant magistrates court must be derived from this document, together with the document dated 3 October 2013 in which the bench chairman set out his reasons for refusing to state a case. The following is apparent from those two documents:(a) The defendant noted as relevant that the claimant was described as very confused and as having forgotten the junction was there. She admitted in cross-examination that she was familiar with the road and the junction but had probably had a loss of concentration.

(b) She had had ten lessons to prepare herself for the driving assessment and yet she demonstrated the lapses of driving in the on-road driving assessment.

(c) The panel accepted Dr Pawley's evidence that the on road assessment of driver safety was more relevant than clinic based tests. It observed that the claimant lacked insight, as she considered she was a better driver now than 20 years earlier. It endorsed a functional on-road assessment as better at assessing driving related functions than the MMSE and Addenbrooke's tests.

(d) It set out its findings under the heading "we found ..." It is apparent that these were the main findings of the defendant magistrates and that these led to its ultimate conclusion.

[46]The main findings and conclusion are in the following terms:

"(i) Medical evidence presented by the appellant since revocation of her licence is not indicative of her condition on the day of revocation. (ii) The evidence and reports from the accident and driving assessment supports that the DVLA were reasonable in their conclusion that the appellant was suffering from age related cognitive impairment and they were correct to revoke Mrs Hitchen's licence. (iii) We gave weight to the learned medical panel's decision, whose sole focus is driving and psychiatric disorders. (iv) We accept that Dr Pawley is an expert in the field of applying standards of fitness to drive. Conclusion: we believe that the appellant has not proved her case on the balance of probabilities, that the decision by the DVLA to revoke her licence was incorrect and therefore the appeal is dismissed." (e) In rejecting the application to state a case as frivolous, the bench chairman stated that the questions posed in the application appeared to misunderstand the nature of the proceedings before the magistrates court. He stated that the appeal was by way of a re-hearing so that the court looked at the matter in issue afresh, considering all the relevant evidence, including that arising between the original decision appealed against and the appeal hearing. Significantly, in answer to the third question he said that what the Secretary of State or DVLA decide to do is irrelevant in the sense that "we heard the matter afresh and made up our own minds"

. The relevant legal framework

[48]By section 92(2) of the Road Traffic Act 1988 there are requirements specified as to the physical fitness of all drivers:

"(1) An application for the grant of a licence must include a declaration by the applicant, in such form as the Secretary of State may require, stating whether he is suffering or has at any time (or, if a period is prescribed for the purposes of this subsection, has during that period) suffered from any relevant disability or any prospective disability. (2)In this Part of this Act— “disability” includes disease “relevant disability” in relation to any person means— (a)any prescribed disability, and (b)any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public, and “prospective disability” in relation to any person means any other disability which— (a)at the time of the application for the grant of a licence or, as the case may be, the material time for the purposes of the provision in which the expression is used, is not of such a kind that it is a relevant disability, but (b)by virtue of the intermittent or progressive nature of the disability or otherwise, may become a relevant disability in course of time. (3)If it appears from the applicant’s declaration, or if on inquiry the Secretary of State is satisfied from other information, that the applicant is suffering from a relevant disability, the Secretary of State must, subject to the following provisions of this section, refuse to grant the licence."

[49]The disabilities that are prescribed within the meaning of subsection 2 are contained in regulations known as the Motor Vehicles Driving Licences Regulations [1999] SI 1999 2864. Regulation 71 identifies as relevant disabilities that are prescribed for these purposes severe mental disorders and liability to sudden attacks of disabling giddiness or fainting, whether caused by any disorder or defect of the heart or otherwise, together with the persistent misuse of drugs or alcohol, whether or not such misuse amounts to dependency. Severe mental disorder is defined to include mental illness, arrested or incomplete development of the mind, psychopathic disorder and severe impairment of intelligence or social functioning. There is no suggestion that the claimant suffered from any prescribed disability.

[50]In relation to disability other than prescribed disability, the statute provides that this includes a disease but otherwise the term is not defined. It is common ground, and I agree, that to satisfy the statutory requirement that there is a disability there must be a medical or other identifiable physical or mental condition that is likely to cause the person's driving to be a danger.

[51]Section 93 gives the Secretary of State power to revoke a driver's licence if at any time satisfied on enquiry(a) that a licence holder is suffering from a relevant disability and

(b) that the Secretary of State would be required, by virtue of section 92(3) of this Act to refuse an application for the licence made by him at that time.

[52]Accordingly, it is clear that, before the Secretary of State can take action to revoke a driver's licence under these statutory provisions, the relevant decision maker must be satisfied on the balance of probabilities that the driver is suffering from or has a relevant disability.

[53]Parliament has also recognised that, with increasing age, comes a deterioration in physical or mental fitness to drive. Accordingly, at the age of 70 drivers are required to apply for their driving licence again, making an accurate declaration as to their fitness to do so. From age 70 there is a rolling obligation to reapply in this way every three years (see section 99 Road Traffic Act for example).

[54]Absent a medical or other identifiable physical or mental condition liable to affect the safety of a person's driving, a driver believed to be driving carelessly or dangerously is liable to be prosecuted in the criminal courts. Convictions for careless or dangerous driving require proof to the criminal standard and there is, for careless driving at any rate, a discretion whether or not to disqualify and as to the duration of such disqualification. A younger driver who drove in precisely the same way as the claimant could not have had his or her licence revoked permanently on an inference of age related cognitive decline and, in the absence of evidence of a relevant disability, if prosecuted might be liable to disqualification from driving for a determinate period, which might be weeks, months or years depending on the circumstances. Whether that is a more or less favourable approach was disputed by the parties but may not matter. The two avenues are different, require proof to different standards of different conditions, and have different consequences.

[55]Appeals to the magistrates court against revocation of a licence are dealt with by section 100 of the Road Traffic Act 1988, which provides at subsection 2 that on any such appeal the court may make such order as it thinks fit and that the order shall be binding on the Secretary of State.

[56]The nature of such an appeal was considered by Kenneth Parker J in Golding v Secretary of State for Transport

[2013] EWHC 300

Admin. At paragraphs 12 and 13, in relation to the nature of such a hearing, he held, firstly, that on an appeal before the magistrates they are entitled to have regard to any material that was before the relevant decision maker that has probative value on the issue in question, whether or not that material is strictly admissible in evidence by ordinary rules of criminal or civil procedure. Secondly, the magistrates must decide whether the decision that is under challenge, taken by the decision maker at the date specified, was the correct decision in all the circumstances now known to the court, whether or not that material was before the decision maker or indeed could reasonably have been before the decision maker at that time.

[57]Accordingly, he held that the true nature of the proceedings is a complete re-hearing involving a de novo assessment by the magistrates themselves of whether the decision under challenge is correct and that that is the essential focus of any appeal under this legislation.

[58]Against that background, I turn to consider the three grounds of challenge. Ground 1: whether the defendant erred in law in applying a reasonableness review

[59]The claimant submits that the wrong legal test was applied by the defendants, by reference in particular to the statement that the:

"DVLA were reasonable in their conclusion that the appellant was suffering from age related cognitive impairment ..."

[60]When the defendant's second main finding is considered on its own and in isolation, it is right to say that a doubt arises as to whether the defendants were applying the correct test because of the reference to the reasonableness of the DVLA's conclusion. However, the document is not to be read like a statute and a single sentence is not to be taken in isolation. Similarly, an infelicity of expression is not to be relied on when otherwise the thrust of the whole document is clear.

[61]Reading the document as a whole, and bearing in mind that these are lay magistrates expressing their conclusions, I do not consider that it is a fair interpretation of the approach adopted by the magistrates. Firstly, in the same finding the defendants state in addition to the reference to the reasonableness of the DVLA's conclusion that the DVLA were correct in their conclusion. Secondly, the defendants' ultimate conclusion in the document is addressed to the question whether the conclusion was correct or incorrect.

[62]Although Mr Tomlinson submitted that that conclusion paragraph does not cure when might be an earlier error, I disagree. Whilst it is right to say that the burden under section 100 is accepted by both sides to be a neutral burden and the conclusion appears to suggest a burden on the claimant, this was not one of those rare cases where resort had to be had to the burden of proof. Nor does this paragraph suggest that the defendants were approaching the case on the basis that the claimant had to establish that she was not suffering from a relevant disability. Looked at as a whole and read fairly together, these paragraphs suggest that the correct approach was being adopted.

[63]In any event, the position is put beyond doubt, in my judgment, by the explanation and answers given by the defendants in their refusal to state a case. In that document, dated 3 October 2013, the bench chairman said as follows:

"It is clear that any appeal is by way of re-hearing so the court looks at the matter in issue afresh. At the hearing we heard all of the evidence that the parties sought to put before us. We made findings of fact and decided to refuse the appeal on the basis of what we heard ... no question of law arises. Moreover, it is clear that, as the appeal was by way of re-hearing, we were entitled to consider all of the relevant evidence, including that arising between the original decision appealed against and the appeal."

[64]The application to state a case identified as a question of law for the opinion of the High Court, question 3, namely whether the Secretary of State was entitled to be satisfied on 26 September 2012 that the appellant's licence should have been revoked. The bench chairman stated that this was not the relevant question:

"What the Secretary of State/DVLA decides to do is irrelevant in the sense that we heard the matter afresh and made up our own minds."

[65]In those circumstances, I am not persuaded that the defendants adopted the wrong legal test and ground 1, accordingly, fails. Ground 3: misdirection in failing to consider whether there was evidence of a relevant disability likely to cause driving to be a source of danger

[66]This is the main ground relied on by the claimant. On her behalf it is contended that the defendants misdirected themselves in law by focusing solely on the question whether her driving ability was likely to be a source of danger to the public. As a result, there was a failure to consider whether there was evidence to satisfy the statutory requirement that there be a medical or other identifiable physical or mental condition likely to cause that dangerous driving.

[67]Mr Tomlinson submits that there was no evidence to support a finding of age related cognitive impairment before the defendants. On the facts of this case, he submits this was a fiction designed to support the revocation decision and a fiction that could not have been adopted in the case of a younger driver in the same circumstances. He points to the general finding of the defendants, which accepted that on-road assessments of whether a driver was able to drive safely in traffic is more relevant than clinic based tests. He says that, whilst on-road assessments may be a proper basis for testing a driver's safety, there must also be evidence of an underlying condition amounting to a relevant disability to which the performance in the on-road assessment can be attributed.

[68]The two tests serve distinct purposes but this was not recognised by the defendants. Dr Pawley, he says, provided no evidence of any underlying cause for the bad driving and the conclusion that the claimant was suffering from age related cognitive impairment was, on analysis, not based on any evidence at all. Mr Tomlinson points to the approach set out by the DVLA's Honorary Panel and suggests that this has been misread by the defendants and by the DVLA.

[69]Against that, Mr Thomann accepts that there are two separate conditions that must be satisfied in order to satisfy the requirements for statutory revocation here. He accepts, first, that there must be established a medical or other identifiable condition and, secondly, that it is likely to be the cause of the dangerous driving. He accepts that there must be evidence to establish both. He accepts that there is a difference between a functional driving assessment and a clinical assessment of any underlying medical or other cause for that driving but submits that there are particular difficulties in identifying age related cognitive impairment and that bad driving may be the first manifestation of such impairment, given that driving requires particularly high level skills. This is why he says that the most helpful indicater of a cognitive deficit in driving related skills is the on-road driving assessment. Whilst this cannot establish whether there is a cognitive impairment, it can throw up that possibility. There would then, he accepts, have to be evidence that establishes that this is a likely cause of the bad driving.

[70]So far as Dr Pawley's expert evidence is concerned, Mr Thomann does not contend that the DVLA is entitled to proceed in the absence of evidence in a particular case on the basis of stereotypical assumptions about how the driving of older drivers may be affected by age, but rather that there must be evidence in the particular case of age related cognitive decline being the cause of any dangerous driving.

[71]Against the background of those general points, Mr Thomann contends that there was evidence sufficient to entitle the defendants to conclude that the claimant is, and was at the relevant time, on the balance of probabilities suffering from age related cognitive impairment. He points to a number of pieces of evidence, each of which he accepts would not be sufficient on their own but which, taken together, entitled the defendants to reach the conclusions they did. Firstly, the accident, together with the claimant's demeanour and behaviour at the scene.

[72]Secondly, her performance at the driving assessment, where basic steps, particularly in relation to the mirror, signal, manoeuvre sequence were repeatedly missed -- most blatantly when changing lanes into the path of another vehicle -- and that this was despite the fact that she had had ten lessons to prepare for the assessment. Thirdly, Dr Pawley's evidence of the general impact of age on cognitive ability and his view as an expert in this field that age related cognitive impairment is the most likely explanation. Fourthly, whilst he accepts that there was contrary evidence in Dr Morgan's expert opinion, this could be discounted, he says, on Dr Pawley's evidence because of the possibility of impairments not manifesting in a clinical setting but first manifesting themselves in a driving setting. That would be consistent, he submits, with the Honorary Medical Panel's advice, particularly at paragraph 31, that an on-road assessment is the better and most relevant way of identifying those issues than any other test.

[73]Accordingly, on that footing he submits that there was nothing unlawful or perverse in the defendants' finding that the claimant was suffering from an age related cognitive impairment which had the requisite effect on the safety of her driving.

[74]In my judgment, the central question on this ground is whether there was evidence that entitled the defendants to conclude, in the claimant's specific case, that there was, on balance, an underlying medical or other identifiable condition likely to cause her driving to be dangerous. For the reasons that follow, I do not accept Mr Thomann's submissions that there was in the specific and unusual circumstances of this case.

[75]In this case, the claimant presented, as I have already described, expert medical evidence from Dr Morgan. He examined the claimant comprehensively using a series of tests and reached conclusions about her particular medical circumstances. He dealt expressly with the general statements about minimal cognitive impairment made by the Honorary Medical Advisory Panel, in effect saying that the general must gave way to the specific in this case in light of his detailed assessment of the claimant.

[76]Dr Morgan's assessments included an assessment using the Addenbrooke's test. Many of the Rookwood Driving Battery Test criteria are encompassed in the Addenbrooke's test. In other words, if there was an underlying age related cognitive impairment, some evidence of it would be expected to be identified by this test.

[77]The Addenbrooke's test showed the claimant's performance to be almost faultless, and performed at reasonable speed. Dr Morgan concluded, accordingly, that her performance did not indicate any underlying age related cognitive impairment of any nature. These conclusions are not addressed or challenged by Dr Pawley in his evidence, save perhaps implicitly by reference to the view that the on-road driving assessment is a gold standard in assessing driving related cognitive functions.

[78]Given the specific un-challenged evidence of Dr Morgan, based on his comprehensive examination of the claimant, I do not accept that the evidence of her bad driving on the day of the accident and demeanour, together with the unsatisfactory on-road driving assessment, affords an evidential basis for inferring a relevant disability in this particular case. Dr Pawley did not examine the claimant, and his evidence deals generally with the impact of age on cognitive ability and statistical evidence about the increased rate of accidents in relation to older drivers. But in light of Dr Morgan's reports and in the absence of any explanation squarely addressing his reports or any evidence from Dr Pawley that could explain why the inference is still properly to be drawn despite Dr Morgan's reports, I am not satisfied that this was an inference he was entitled to draw on these particular facts.

[79]In addition to the general statistical evidence already referred to and relied on by Dr Pawley, the approach he adopted is apparently justified by reference to the Honorary Medical Advisory Panel's minute, which both the DVLA and the defendants read as supporting an approach whereby an on-road driving assessment alone is regarded as providing sufficient evidence of cognitive impairment equating to a relevant disability. However, despite Mr Thomann's forceful submissions about the meaning to be drawn from the Honorary Panel's minute, I have concluded that a proper reading, in particular of paragraph 29, shows that it is not what the Panel was saying.

[80]In my judgment, the Panel minute makes clear, in the context of a discussion as to whether a licence could be revoked on the basis of erratic driving performance or whether in the absence of a recognised diagnosis a recommendation to retain the licence would have to be made in the case of an older driver, that erratic driving may require disqualification by the courts if there is no recognised medical cause apparent. The Panel minute says in terms that "age alone is not reason to remove a licence and should never be". That, in my judgment, shows an appreciation of the underlying statutory requirement that there must be evidence of a medical or identifiable condition underlying the poor driving before revocation can take place, pursuant to section 93 of the Road Traffic Act, and that, in the absence of such evidence, disqualification for erratic driving is generally dealt with under different statutory powers.

[81]Moreover, there is nothing in the Panel's minute that advises or recommends the possibility of a medical diagnosis of cognitive impairment being made solely on the basis of an on-road driving assessment. Rather, what the Panel discussion is directed at is the question whether a driver is able to drive safely in traffic. This is one aspect of the test for revocation under section 93, the other being the need for a medical or other identifiable condition in the form of a relevant disability for that unsafe driving. There is nothing in the document to suggest that the existence of a relevant disability can be inferred from driving performance alone. That is correct in my judgment, because, in my judgment, the existence of a relevant disability cannot be inferred from bad driving alone.

[82]As a general proposition, I accept that bad driving demonstrated in an on-road assessment, together with the fact that an elderly driver is involved, may in combination give rise to the possibility of an inference of age related cognitive impairment as the likely cause, but if there is specific evidence in the particular case that contradicts that general evidence about the effect of aging, one would expect clear reasoning to demonstrate and explain why the inference of age related cognitive decline is nevertheless to be drawn as the likely cause. There is no such reasoning here. There is nothing in Dr Pawley's evidence that explains why the bad driving exhibited at the assessment is a proper basis for the inference of a relevant disability, despite Dr Morgan's expert conclusions to the contrary.

[83]In the circumstances, I am persuaded that the defendants' approach was flawed for failure to consider whether there was evidence to satisfy the statutory requirement of a medical or other identifiable condition amounting to a relevant disability. The defendants did not conclude that the only explanation for the bad driving in this case could be disability. This is a case where the bad driving could have been caused by something else, such as poor driving habits and lack of driving skills, anxiety and nervousness. In light of Dr Morgan's evidence, and absent a proper basis for rejecting it, in my judgment the statutory test for revocation was not met. Ground 4: Irrational exclusion of relevant evidence

[84]This is closely related to ground 3 and concerns an irrationality challenge to the defendants' first main finding that the medical evidence presented by the appellant since revocation of her licence is not indicative of her condition on the day of revocation.

[85]Mr Thomann readily accepts that if there was an age related condition at the date of the accident, it would follow that the claimant would be suffering from such a condition at a subsequent appeal hearing, so that timing on its own would not be a reason to exclude that evidence. He submits, however, that the finding, as expressed by the defendants, is ambiguous, because it can be read as simply meaning that the medical evidence presented by the appellant was not indicative of her condition; the question of timing being irrelevant. He submits that that construction makes sense and is consistent with the views expressed by the Honorary Medical Advisory Panel and by Dr Pawley. He also submits that that construction is supported by the bench chairman's reasons in refusing to state a case. He relies, in particular, on the answer given to question 1, which was whether it was right to find that the medical report was not indicative of the claimant's condition, the answer given being:

"Question 1 is a question of fact and, in any event, it is irrelevant to refer back to the date of revocation in this way."

[86]I do not find that answer to question 1 helpful. In my judgment, it is confusing and casts little light on the earlier findings.

[87]Mr Thomann, however, submits that it demonstrates that the defendants excluded the medical evidence because there was other evidence that indicated cognitive age related impairment and an explanation as to why the impairment might not manifest itself in a clinical setting but might nevertheless manifest itself in a driving assessment of the kind adopted here.

[88]I do not accept that submission. In my judgment, there is nothing in the document to suggest that the defendants excluded the medical evidence for the reasons Mr Thomann gives. Even if he is right and the defendants' first main finding is not to be read as timing related for the reasons he gives, in my judgment it remains irrational.

[89]I accept that the magistrates may have been entitled to conclude that Dr Morgan's expert medical evidence was not conclusive. They were not entitled, however, without more, to say that it was not indicative of her condition, which was their finding.

[90]Dr Morgan's evidence was unchallenged. It was based on a number of tests, including the Addenbrooke's test, which is accepted to be a better test of ability in these circumstances. That medical evidence was not dealt with in Dr Pawley's evidence, beyond a passing reference to it, and there is no rational basis on which it could have been excluded as not indicative of the claimant's condition. The fact that Dr Pawley is an expert in the field of applying standards of fitness to drive does not afford a logical or rational basis for ignoring or excluding it, and nor is any such basis afforded by the Honorary Medical Advisory Panel's minute already referred to.

[91]In those circumstances, in my judgment, ground 4 is made out and demonstrates irrationality on the part of the defendants.

[92]I turn then to consider the question of relief in light of my conclusions.

[93]Mr Thomann identified three possible consequences or courses to adopt. First, he suggests that it would be appropriate to invite the defendants to state a case. Secondly, and alternatively, the proper course is to remit the matter to a different panel for a fresh hearing. Thirdly, there is the course advanced by Mr Tomlinson, which Mr Thomann strongly invites me not to take, and that is to quash the decision and reinstate the claimant's licence.

[94]It seems to me that this is not a case in which I should require the defendants to state a case. Their reasoning is adequately identified by the two documents referred to above and they have already refused to state a case. No purpose would be served in remitting this case for that purpose.

[95]The real question is whether there is any purpose to be served in remitting the matter to a fresh panel of magistrates for a re-hearing in the particular circumstances of this case.

[96]Mr Thomann speculated about what evidence might be available at a future hearing but, in my judgment, such speculation is impermissible. The question is to be addressed on the basis of the existing evidence. Dr Pawley's proof of evidence is available and, as I have indicated, it is safe to assume it represents the high point of his evidence.

[97]Given Dr Morgan's specific assessment of the claimant and his conclusions following a thorough examination of her, given the absence of any rational basis for declining to accept that evidence, in my judgment the only rational conclusion possible on the basis of the evidence in this particular case is that it does not establish any identifiable underlying condition amounting to a disability. Accordingly, no purpose would be served in remitting this matter.

[98]In my judgment, accordingly, in the circumstances of this particular case and in light of Dr Morgan's specific evidence, the proper course is to quash the defendants' decision and to reinstate the claimant's licence.

[99]That is the order that I propose to make.

[100]MS JABER: Yes, my Lady. Thank you.

[101]I just request, on behalf of the claimant, our costs from the DVLA and the interested party. They were the ones who were defending the proceedings.

[102]I wonder if you have received a schedule of costs of the claimant?

[103]MRS JUSTICE SIMLER: I haven't received any submissions today. I don't know when they were sent.

[104]Let me just hear from Mr Thomann. In principle, costs must follow the event, mustn't they, Mr Thomann?

[105]MR THOMANN: My Lady, I certainly cannot resist the costs of the proceedings in this court. There is a question of whether my client should be bearing the cost of the magistrates court proceedings, which have been included in the schedule of costs. I say that that would not be the appropriate order in this case. Not merely was the defendant not my client in the proceedings as originally brought and the decision of the magistrates involves a separate process, but also my client did, at an early stage of these proceedings, offer to have the matter sent back to the magistrates court for re-hearing or for the case to be stated.

[106]MRS JUSTICE SIMLER: Yes. All right. In principle you don't resist the costs of the judicial review?

[107]MR THOMANN: No.

MRS JUSTICE SIMLER: Let me just then hear -- is it Ms Jaber?

[109]MS JABER: Ms Jaber. Yes, my Lady.

MRS JUSTICE SIMLER: Do you want to hand up the document that you referred to earlier.

[111]MS JABER: The schedule of costs, yes. (Document handed)

[112](Pause).

[113]MRS JUSTICE SIMLER: Ms Jaber, I know you are standing in for Mr Tomlinson, but are you in a position to deal with why the costs range beyond the costs of the judicial review?

[114]MS JABER: My Lady, the only point I can make in response to my learned friend's submission is the fact of the matter is the magistrates court proceedings arose from the original unlawful decision of the Secretary of State in this matter and so are incidental to it.

[115]MRS JUSTICE SIMLER: The only decision that is unlawful is the magistrates court's decision. The original decision that the DVLA made was made at a time when there wasn't medical evidence from Dr Morgan.

[116]MS JABER: Yes, my Lady. I understand that.

[117]I have no further submissions I can make on that point, unfortunately.

[118]MRS JUSTICE SIMLER: All right. What I said on Friday to Mr Tomlinson was that, if necessary, I would be content to deal with consequential orders on paper. I don't want to be unfair to you --

[119]MS JABER: It might be better, my Lady, if we had the opportunity to address that submission on paper, as I don't have instructions on it today.

[120]MRS JUSTICE SIMLER: Okay. What I am going to say at this stage is, in principle, I can't see why you should have anything more than the costs of the judicial review, but I will permit written submissions to be made if that isn't accepted. All right?

[121]MS JABER: Thank you very much, my Lady.

[122]MRS JUSTICE SIMLER: There is then a question of detailed assessment, or rather summary assessment, of those costs, not detailed assessment. You are seeking a summary assessment, Ms Jaber?

[123]MS JABER: Yes.

[124]MR THOMANN: My lady, I had rather anticipated I may be pushing at an open door in suggesting that this is one of those unusual cases where a detailed assessment would be appropriate. The reasons for that are, one, this schedule, on my reading, doesn't actually distinguish in a satisfactory way between the costs of the various stages, it doesn't particularly break down the costs, and it is an unusually large schedule that includes a number of items of correspondence et cetera that aren't broken down and includes leading counsel's fees --

[125]MRS JUSTICE SIMLER: I will tell you what I am prepared to do, Mr Thomann. You are right, it doesn't distinguish between the costs of the magistrates court proceedings and the costs of the judicial review. It may be difficult to deal with it, even on a broad brush basis, at this stage. I am going to allow the parties to deal with costs in writing.

[126]I would prefer to make a summary assessment if possible, because I am conscious that the costs are already high and to send them off for a detailed assessment is just going to increase costs. If we can do it on a broad brush basis, with the summary assessment, I would prefer that for the sake of all parties. Obviously, if we can't, we can't.

[127]Once Ms Jaber has taken instructions in relation to the question in principle about costs it may be possible to reach some agreement or to make some short submissions, or alternatively to say to me, "we really can't deal with it on a summary basis and it must be sent off for a detailed assessment".

[128]MR THOMANN: My Lady, so be it.

MRS JUSTICE SIMLER: Can I leave it in that way?

[130]MR THOMANN: Yes.

MRS JUSTICE SIMLER: Are you content with that, Ms Jaber?

[132]MS JABER: Thank you very much, my Lady. I appreciate it.

MRS JUSTICE SIMLER: Very well.

[134]Can I also ask you, Ms Jaber, since you are the winning party, to draw up an order setting out the possible costs consequences in line with whatever additional submissions you wish to make.

[135]Realistically, how quickly can you do that? The quicker you do it, the better, because it is going to save time and costs.

[136]MS JABER: I would have to take instructions on that, unfortunately.

[137]MRS JUSTICE SIMLER: Well, I am going to say that you need to put in any written submissions on costs by 4 o'clock on Thursday.

[138]MS JABER: Thank you, my Lady.

[139]MRS JUSTICE SIMLER: And a response from you, Mr Thomann, by 4 o'clock on Friday? Is that too short notice?

[140]MR THOMANN: Given that I am in court, that may be too short. If we could have until Tuesday?

[141]MRS JUSTICE SIMLER: I am going to say Monday, 4 o'clock on Monday of the following week. So Thursday is 22nd January, I think, and the following 26th -- 4 o'clock on the 26th. Then I will make a decision on the papers. Either it will be a summary assessment or alternatively it will be an order directing that the matter should go for a detailed assessment.

[142]Is there anything else?

[143]MS JABER: No, thank you.