James Curtis v Registrar of Approved Driving Instructors [2025] UKFTT 560 (GRC)

[2025] UKFTT 00560 (GRC)

Case Reference: FT/D/2024/674

First-tier Tribunal

(General Regulatory Chamber)

Hearing Heard on: 6 th May 2025

Date 21 May 2025

Transport

Heard by Cloud Video Platform

Before

JUDGE KIAI

TRIBUNAL MEMBER FRY

TRIBUNAL MEMBER BOOTH

Between

JAMES CURTISAppellant

REGISTRAR OF APPROVEDRespondent

DRIVING INSTRUCTORSRespondent

Did not attend for Appellant

Represented by Mr Russell for Respondent

Decision: The appeal is Allowed

REASONS

[1]This appeal concerns a decision of the Registrar of Approved Driving Instructors ("the Registrar") made on 15 July 2024 to remove the Appellant from the Approved Driving Instructor Register (the "Register") on the grounds that the Appellant was not a fit and proper person to become an Approved Driving Instructor ("ADI"). This is because he had a fixed penalty for breach of requirements as to control of the vehicle, mobile telephones and so on, resulting in 6 penalty points.

[2]The Appellant was first registered in July 2012. He renewed in July 2016 and re-registered in November 2020. His registration expired on the last day of November 2024.

[3]On 2 June 2024, the Appellant notified the Registrar that he had accepted a fixed penalty notice for breach of requirements as to control of the vehicle, mobile telephones and so on, on 10 March 2024, resulting in 6 penalty points.

[4]By way of a letter dated 2 September 2024. The Registrar indicated that he was considering refusing the application on the grounds he had ceased to be a fit and proper person to have his name retained in the register. He invited him to make representations.

[5]Representations were made on 11 July 2024.

[6]The application was refused on 15 July 2024.

[7]The Appellant appealed to the Tribunal on 2October 2024. He was out of time and provided reasons for an extension of time in the GRC1. It only became apparent to the Tribunal after the hearing was completed that there had been no decision on whether an extension of time should have been granted. The Registrar did not raise this issue nor make any submissions on it either in his response nor at the hearing. As such, I considered whether an extension of time should be granted as a preliminary issue (set out below).

[8]The proceedings were held by video (CVP). The Appellant did not attend – no explanation was provided for the Appellant’s absence and there was no application to adjourn before us. We were satisfied that the Appellant had been informed of the correct date and time of the hearing. The Respondent attended by telephone, we were satisfied that it was fair and just to conduct the hearing in this way. Having waited for the Appellant to attend, the Tribunal decided that, in all the circumstances, it was appropriate and in accordance with the overriding objective to proceed with the hearing in the Appellant's absence. Preliminary Issue: Extension of Time

[9]The Appellant made the following submissions on the Notice of Appeal (GRC1): “On the 08/08/2024….I submitted an appeal to the General Regulatory Chamber (GRC) against a decision of the Driver and Vehicle Standards Agency (DVSA) dated 15/07/2024 to remove me from the register of approved driving instructors. A copy of the email submitting that is attached. This email was sent by my brother from his wife’s email account, as I was unable to submit this myself for reasons that I detail below. I was advised by the DVSA that I had been permanently removed from the Register on the basis that no appeal had been filed against the decision to remove me. This came as a significant shock as I was confident that an appeal had been filed. I am now aware that an email was sent to my email address…from the GRC dated 19/08/2024. This email highlighted an issue with the appeal form and advised me to submit additional information in connection with the appeal, allowing me 28 days to do so. Unfortunately, I did not see the email from GRC dated 19/08/2024 until this week, although I do not dispute that this was sent to my email. At about the time that the appeal was submitted, my father (who is in his 90s) had been diagnosed with prostate cancer on the 07/08/2024 (see attachments), which has metastasized into his bones. This has also caused impairment to his liver and kidney functions. My mother, in her 80s had been the sole carer for my father, who is also severely disabled having been involved in a serious air crash during his RAF national service career. The prognosis for my father is that he is at his end of life, and I was and continue to support my parents who wish for him to remain in the family home. I attach evidence of my father’s condition. On the 14/09/2024, my father was taken by ambulance to A&E as he had been coughing up blood. I attach evidence of this in a text message sent to my brother on the 14/08/2024. His condition is very serious, and has been a concern for my mother, myself and my siblings. As both of my siblings live in the south of England, I have until very recently been the one who has been mainly supporting my mother to look after my father. On 18/09/2024, my mother had a fall and has broken her hip. This has been replaced and my mum has been discharged, but no support has been provided to support them to live independently. This is now being undertaken by myself with my siblings, but you will understand that this is a time of significant upheaval and emotional stress. Whilst I do not dispute that the email was sent to me, the email did not highlight that it related to my appeal, and I did not recognise it from the email address or subject line as being something important. I am sure that my personal circumstances at the time, which have been extremely challenging, contributed to my failure to read the email concerned. I apologise sincerely for my oversight and confirm that I intended no disrespect to the court by that error. Following a conversation on the 2nd October 2024 with Chris Walker in your office, I confirm that I would be grateful if the Court could consider my circumstances, and permit me a small extension of time to action the outstanding matters detailed in the correspondence dated 19/08/2024’. Legal landscape

[10]Rules 2, 5 and 7 of the 2009 Rules bear heavily on my consideration. They materially read as follows: “Overriding objective and parties’ obligation to cooperate with the Tribunal: 2.(1) The overriding objective of these Rules is to enable the Tribunal to deal with cases fairly and justly

(2) Dealing with a case fairly and justly includes – (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal. (b) avoiding unnecessary formality and seeking flexibility in the proceedings. (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues.

(3) The Tribunal must seek to give effect to the overriding objective when it - (a) exercises any power under these Rules; or (b) interprets any rule or practice direction... . Case management powers 5. (1) Subject to the provisions of the 2007 Act and any other enactment, the Tribunal may regulate its own procedure. ... (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may – (a) extend or shorten the time for complying with any rule, practice direction or direction …. Failure to comply with rules, practice directions or tribunal directions (2) Dealing with a case fairly and justly includes – (a) dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal. (b) avoiding unnecessary formality and seeking flexibility in the proceedings. (c) ensuring, so far as practicable, that the parties are able to participate fully in the proceedings. (d) using any special expertise of the Tribunal effectively; and (e) avoiding delay, so far as compatible with proper consideration of the issues. (3) The Tribunal must seek to give effect to the overriding objective when it - (a) exercises any power under these Rules; or (b) interprets any rule or practice direction... . ... (3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Tribunal may – (a) extend or shorten the time for complying with any rule, practice direction or direction ….

[7]… (2) If a party has failed to comply with a requirement in these Rules, a practice direction or a direction the Tribunal may take such action as it considers just, which may include:-(a) waiving the requirement;

(b) requiring the failure to be remedied;

(c) exercising its power under rule 8 (striking out a party’s case) … (e) barring or restricting a party’s participation in the proceedings.”

[11]The 2009 Rules do not identify a specific ‘test’ to be applied when the Tribunal is considering whether to extend time, but rather such consideration is aligned with the overriding objective of the Rules to deal with cases ‘fairly and justly’.

[12]There are three relatively recent and pertinent decisions of the senior courts which also bear on such consideration. The first in time is Mitchell v News Group Newspapers Ltd

[2013] EWCA Civ 1537

[2014] 1 WLR 795

. The Court of Appeal therein upheld a Master’s decision that a claimant who had served a costs budget six days late, required relief from sanctions under CPR 3.9. before the costs budget could be considered by the court.

[13]The decision in Mitchell was followed shortly thereafter by that of Denton v White

[2014] EWCA Civ 906

[2014] 1 WLR 3926

, which concerned three conjoined appeals each of which involved the application of CPR 3.9. to cases where the claimants had failed to comply with court orders or rules. For the purposes of my decision, it is only necessary to draw attention to the following passages from the Court of Appeal’s judgment:

"[35] [The court] will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. Where there is good reason for a serious or significant breach, relief is likely to be granted. Where the breach is not serious or significant, relief is also likely to be granted. [36] But it is always necessary to have regard to all the circumstances of the case. The factors that are relevant will vary from case to case. As has been pointed out in some of the authorities that have followed Mitchell, the promptness of the application will be a relevant circumstance to be weighed in the balance along with all the circumstances. Likewise, other past or current breaches of the rules, practice directions and court orders by the parties may also be taken into account as a relevant circumstance."

[14]The decisions in Mitchell and Denton had as their contextual setting private law civil proceedings. In R (Hysaj) v Secretary of State for the Home Department

[2014] EWCA Civ 1663

, the court concluded that the same approach should be adopted in the public law arena; acknowledging when doing so that a public law claim may raise important issues for the public at large and that this should be a factor taken into account when considering whether to extend time.

[15]At [93] of its decision in Secretary of State for the Home Department v SS (Congo) & Others

[2015] EWCA Civ 387

, the Court of Appeal drew together the learning from Mitchell, Denton and Hysaj, in these terms:

“…a Judge should address an application for relief from sanction in three stages, as follows: i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance. ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage. iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders…”

[16]Although none of the decisions cited above were made in the specific context that presents itself in the instant matter, I can see no good reason as to why the approach commended in Mitchell, Denton and Hysaj should not equally be applied to the First-tier Tribunal’s consideration of whether to extend time. Nothing in the approach rehearsed above is in discord with the overriding objective of the 2009 Rules, nor in my view is there any discord between the ratio of the aforementioned decisions and the decisions in Data Select Limited v HMRC

[2012] UKUT 187 (TCC)

and Leeds City Council v HMRC

[2014] UKUT 0350 (TCC)

, which are often cited by this Tribunal, and the Upper Tribunal (AAC), as authority for the proper approach to applications such as the instant one. Application of the legal landscape to the instant case

[17]I turn first to consider the seriousness and significance of the failure to comply with the 2009 Rules. The Appellant was required to submit an appeal within 28 days of the date he was sent the decision (15th July 2024), so 12th August. it was submitted on 2 October 2024, 50 days late.

[18]This, in my conclusion, is a substantial and serious delay in the lodging of the appeal.

[19]However, I have taken into account the Appellant’s evidence that he did try to submit it within the allocated time. It is clear that an incomplete copy of the appeal was served in time.

[20]The Appellant received an email from the GRC on 19th August (albeit he did not see it until much later), giving him 28 days to submit further information (so he had until 16th September). This means that his appeal was in fact 16 days late. I do not consider this to be a substantial or serious delay. As such I find that time should be extended.

[21]If I am wrong on this, I go on to consider the second stage: a consideration of the explanation for the delay, namely that the Appellant did not see the email (‘the email did not highlight that it related to my appeal, and I did not recognise it from the email address or subject line as being something important’). He provides substantial evidence relating to the significant strain he was under at the time, due to both his parents’ ill-health and his significant caring responsibilities. I am satisfied that the Appellant has provided good reasons for the delay.

[22]I finally, turn to consider whether in all the circumstances of the case, I should grant relief from sanctions ie extend time for lodging the appeal. The length of the delay and the merit of the explanation provided for it, are both plainly relevant factors in this consideration. The underlying public importance of the matters in issue in the appeal is also of some weight in my considerations. The hugely prejudicial impact on the Appellant if time is not extended (ie the loss of his only sole source of income) vs the limited prejudicial impact to the Registrar if time is not extended, is also of weight.

[23]Drawing all of this together, looking at the circumstances of the case as a whole including all those matters identified in the previous paragraphs, I conclude that time should be extended. The Appeal

[24]The Appellant's Notice of Appeal dated 2 October 2024 relies on the grounds that he appreciates that he committed a serious offence but asks that the following be taken into account:a. He accepted his error from the moment he was challenged by the police officer;

b. He acknowledged that he should not have been looking at his phone whilst in his car;

c. He was not in his Driving Instructor Vehicle at the time and had no learner signs on the car;

d. He was not with a pupil or any other third party;

e. He was stationary waiting at traffic lights;

f. He was checking google maps satellite navigation;

g. He has been an ADI for over 10 years running his own driving school. It is his sole source of income and he provides employment to another ADI. He is a single father. Removal from the register will have a significant adverse impact on 2 separate households.

[25]The Registrar's Statement of Case dated 22 January 2025 resists the appeal. The Registrar says that the Appellant's driving licence is endorsed with 6 penalty points – and that as such, he is not a fit and proper person.

[26]It goes on to conclude: “In committing these offences, I do not believe that the appellant has displayed the level of responsibility or commitment to improving road safety that I would expect to see from a potential ADI” (§6(a)). The Registrar maintains that he cannot condone motoring offences of this nature. To do so would be to sanction the behaviour, if those who transgress were allowed entry onto an official Register that allows them to teach others. It would be offence to other ADIs and persons trying to qualify an ADI’s who had been scrupulous in observing the law, for her to ignore these motoring convictions.

[27]The Appellant provided a detailed witness statement, dated 22nd March 2025 in response. In that document he reiterates the points in his grounds of appeal. He emphasises that he reported the offence immediately. He expands on the fact that he was under emotional and financial stress at the time of the incident and made an error of judgement. He explains that his father who is his 90s was diagnosed with prostate cancer in early 20024 which metastasized into his bones, this caused impairment to his liver and kidney functions. His mother, in her 80s has been the sole carer for his father who has also been disabled from a national service accident in 1957. The prognosis for his father is that he is at the end of his life and the Appellant was and continues to support his parents whose wish it is for him to remain at their family home. On 14 August 2024, the Appellant’s father was taken by ambulance to A&E as he was coughing up blood. As his siblings have – until recently – been living in the South of England, he was been mainly supporting his mother to look after him. Later in 2024, his mother had a fall and broke her hip. This was replaced and his mother was discharged, but they were provided with no support, therefore the Appellant and his siblings supported them which has been and continues to be a time of significant upheaval and emotional stress. His ADI badge was taken away in November 2024 as it ran out and he could not renew it because of this incident. He has been living without any income for 5 months which has had a catastrophic impact on his personal life, finances and mental wellbeing. Within that statement he includes various 5 star google reviews (we note that several of these refer to Nastaran Akhavan Goran).

[28]He provided a witness statement from Nastaran Akhavan Goran who passed her test with the Appellant. The Appellant then trained her for free to become a qualified ADI instructor. She explains that she is a single parent like the Appellant and they both work for Leap automatic driving school “so it would be financially and mentally catastrophic for us both if James could no longer continue as an ADI”. She ends by stating that she is “a qualified ADI instructor Badge number 860172. In my work I come across many other Driving Instructors and I would have no hesitation in saying that James is one of the best”. The law

[29]Conditions for entry and retention on the Register require the applicant to be and continue to be a “fit” and “proper” person" to have his name on the Register – see sections 125(3) and 127(3)(e) of the Road Traffic Act 1988 (the "Act"). The Registrar has the burden of showing that a person does not meet the statutory requirement to be a fit and proper person, and the standard of proof is the balance of probabilities.

[30]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

[31]In Harris v Registrar of Approved Driving Instructors

[2010] EWCA Civ 808

, the Court of Appeal described the "fit and proper person" condition as follows: "..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…It seems to me that 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. This is why there are stringent disclosure requirements." (paragraph 30). The evidence

[32]We have considered a bundle of evidence containing 43 numbered pages. The relevant facts

[33]The Appellant first entered the register in July 2012. He renewed in July 2016 and re-registered in November 2020. This expired on the last day of November 2024.

[34]On 2 June 2024 the Appellant notified the registrar that he had accepted a fixed penalty notice for breach of requirements as to control of the vehicle, mobile telephones and so on 10 March 2024 resulting in 6 penalty points.

[35]In light of the conviction, the Registrar emailed the Appellant on 14 June to give written notice that he was considering removing his name from the register. He invited him to make representations. The Appellant made representations on 11 July.

[36]The Registrar refused his application to renew his registration in a decision dated 15 July 2024. Conclusions

[37]There is no doubt that use of a mobile phone while driving is a very serious driving offence which often will justify removal from the Register. Such conduct can and frequently does cause serious accidents. It endangers the lives of other road users, pedestrians and the driver themselves, or risks causing serious injury. It is not conduct which should be permitted, condoned or excused – which is why it results in six penalty points and will often result in an ADI being justifiably removed from the Register.

[38]If an ADI's name is allowed to be put on the Register when they have demonstrated behaviours which are relevant to fitness, this will diminish the standing of the Register and undermine the public's confidence in the Register. This includes behaviour relating to driving.

[39]ADIs are held to a higher standard than ordinary motorists. The public has the right to expect that those who are registered as ADIs adhere to the highest standards of motoring, which they themselves should be teaching to their pupils. 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.

[40]The Registrar has the duty of ensuring that only those of appropriate standing are on the Register, and that those who are on it understand their responsibilities and can show they not only know the rules but follow them. What the Appellant did may not seem to be a serious offence, but the law treats it very seriously. It is essential that ADIs follow the law that they are supposed to be teaching to often young and impressionable pupils.

[41]In the Appellant’s witness statement he refers to several pieces of caselaw and asserts “all of them failed to notify the Registrar of the commission of the offence within 7 days which is in breach of the declaration for a licence to give instruction. I immediately notified the registrar”. Firstly, we note that the cases referred to are all First Tier Tribunal decisions, as such they are not binding upon us and we are not required to follow them. Each case must necessarily turn on its own facts, even where they may appear superficially analogous. Secondly, it is unclear on what basis the Appellant states that he immediately notified the Registrar. The offence took place on 10th March 2024, he reported it to the Registrar on 2nd June 2024. It is unclear if the Appellant meant that he reported it within 7 days of the conviction – we have not been provided with the date on which the Appellant was convicted. Unfortunately he did not attend the hearing so could not assist us. Mr Russell did not have this information on his file. However, Mr Russell did very helpfully confirm that the Registrar had no concerns in relation to how the offence was declared. For that reason we give the subject no further thought. We attach no weight to this issue.

[42]The Appellant makes repeated references to the fact that he was not with a pupil at the time nor in a Driving Instructor Vehicle. We note here, that this is not mitigation, it is neutral evidence at most. The issue is that as an ADI driving instructor, he, is held to a higher standard – regardless of whether he was specifically at work at the time of the incident.

[43]We do have sympathy for the Appellant's position. He has been registered as an Approved Driving Instructor for over 10 years, running his own driving school. He has made one serious driving mistake which has affected his ability to pursue a career as an ADI while he has six points on his licence. We accept that up until this point he had a clean record and he has submitted a substantial number of positive references.

[44]The Appellant served several medical documents relating to his father. We are willing to accept that the Appellant’s parents are both very ill, he is effectively their carer and this has put him under significant strain – this was the Appellant’s written submission and the Registrar did not invite us to find otherwise.

[45]The Tribunal considers that this is a finely balanced case. However, having carefully considered all the facts and circumstances, the Tribunal concludes that the Appellant is a fit and proper person to remain on the Register. There are four main reasons for our conclusion:a. First, it is clear that at the particular time when the offence took place, the Appellant was experiencing exceptional stress due to his prevailing family circumstances, in particular the ill-health of his father and his significant caring responsibilities towards both his elderly parents (we note that

(i) his mother’s fall and

(ii) the incident where his father was coughing up blood took place after the date of the incident, however we accept that the Appellant’s father had been very ill at the time of the offence). While these do not justify his actions, they do in the view of the Tribunal provide strong mitigating circumstances which are genuinely exceptional. He explains that it was these circumstances which led to the momentary lapse in judgement. We accept this.

b. Second, we are satisfied that the Appellant did not seek to use his phone ‘actively’ but was checking google maps satellite navigation.

c. Thirdly, we are satisfied that the Appellant and another ADI instructor would suffer significant hardship if the decision is upheld – such that the decision is disproportionate: i. The Appellant’s driving school is his sole source of income. He is a single parent and two households are reliant on his income; ii. He has a Driving School which provides employment for Nastaran Akhavan Goran. She is also a single parent and describes the impact as “financially and mentally catastrophic” – she is entirely innocent in all of this. We attach significant weight to this; iii. The Appellant has not been working for 7 months (unlike many Appellants who come before this Tribunal and are able to continue working up until the date of the hearing). His offences will not ‘expire’ for just under 18 months. This is a significant amount of time. Since he lost his ADI badge, he has been living without any income and has been relying on family handouts, he describes the devastating impact on him.

d. Fourth, in light of the genuinely exceptional prevailing circumstances and the Appellant's response to them, we reject the Registrar's case that permitting the Appellant to remain on the Register would either condone or sanction the Offence or would be offensive to other ADIs or potential ADIs. We do not consider that the specific facts and circumstances of this case lead to this conclusion.

[46]We have considered all of the arguments made by the Appellant and the Respondent. We conclude that there are exceptional circumstances which would justify allowing the Appellant to remain on the Register after committing an offence of this nature.

[47]We find on the balance of probabilities that the Appellant does meet the statutory requirement to be a fit and proper person. In all the circumstances, we conclude that the Registrar's decision to refuse the Appellant's application to be entered on the Register as he was not a fit and proper person was incorrect. We allow this appeal. Signed Date: Judge Kiai 20th May 2025