Wai Kwan Nai v The Registrar of Approved Driving Instructors

This is the appeal of the Appellant, Mr Wai Kwan Nai, against the decision of the Registrar of Approved Driving Instructors (‘the Registrar’), conveyed in a letter of 12 January 2024, to refuse his request for a third trainee licence.

The matter was listed before me for consideration on the papers. I was satisfied that it was just and proper to decide the appeal without a hearing.

The Road Traffic Act 1988 (‘the Act’), s123(1) prohibits the giving of paid driving instruction except where the instructor’s name is included in the Register of Approved Driving Instructors

(‘the Register’) or he/she holds a trainee licence.

Candidates for membership of the Register must fulfil a number of conditions. These include the requirement to pass an examination divided into three parts (‘the examination’): theory; driving ability and fitness; and instructional ability and fitness (the Act, s125(3)(a)). They must apply for a part three test within two years of passing part one; if they do not, they must re-take the entire examination. Candidates who fail part three on three occasions must also re-take the entire examination.

And in this case the current trainee licence comes to an end on the day following the third test.

By the Act, s129(1) it is provided that trainee licences are granted for the purpose of enabling prospective ADIs who have passed parts one and two of the examination to gain practical experience in driving instruction with a view to taking part three. Trainee licences are valid for six months only. The Registrar is expressly empowered to refuse to grant a trainee licence to an applicant to whom such a licence has previously been issued (s129(3)). It is clear from the language of s129 as a whole that trainee licences are not intended to serve as an alternative to registration.

The DVSA website (not, of course, a legal source) includes this advice:

The effect of the Act, s129(6) is that, where a holder of a temporary licence applies during its currency for a fresh licence, the life of the original licence is extended until the commencement of the new licence or, if the application is refused and the holder appeals, until disposal of the appeal.

By the Act, s131(2) an appeal lies to the First-tier Tribunal against a decision to refuse an application for the grant of a licence. On the appeal, the Tribunal may make such order for the grant or refusal of the application as it sees fit (s131(3)). In a different but analogous statutory context in In the matter of the Bonas Group Pension Scheme [2011] UKUT B 33 (TCC) Warren J, sitting in the Upper Tribunal, held that there was nothing to constrain the first-instance Tribunal’s approach on appeal. Its function is simply to make its own decision on the evidence before it (which may differ from that before the statutory body whose decision is under challenge). Despite this latitude, however, high authority of general application recognises two important points. First, the burden is on an appellant to persuade the Tribunal that the relevant decision should be overturned or otherwise interfered with. Second, the Tribunal should give careful consideration to the reasons for the decision being impugned, given that Parliament has invested the relevant body with exclusive authority (subject to appeal) to make decisions on such matters.

The background facts can be summarised as follows.

Mr Nai passed parts one and two of the examination on 1 March and 12 September 2024 respectively.

On Mr Nai’s application, the Registrar granted him two consecutive trainee licences, covering the period from 28 October 2024 to 27 October 2025.

On 11 October 2025 Mr Nai applied to the Registrar for a third licence. That application was refused by the letter of 5 November 2025, to which I have already referred.

Given the timing of the application for the third licence, the life of the second licence was extended by the Act, s129(6) to the date of disposal of this appeal (see above).

Mr Nai booked a part three test for 4 August 2025, but it was cancelled by DVSA because an examiner was unavailable. DVSA then booked another test at short notice, for 1 September 2025, but that date had to be vacated because Mr Nai was unavailable. A third appointment was made, for 4 September, and the test went ahead on that date but unfortunately Mr Nai was unsuccessful. It seems that a fourth booking was made for 19 February 2026, but the documents before me do not show whether the test went ahead or, if it did, what the outcome was.

In his notice of appeal dated 14 November 2025, Mr Nai made a number of points, mostly relating to systemic delays resulting from unavailability of examiners and scarcity of test slots. Generally, he urged the Tribunal to grant him a further six-month licence to enable him to complete the part three test.

The Respondent resisted the appeal, stressing the importance of not allowing trainee licences to serve as an alternative to the registration system and the fact that eligibility to take the part three test is not conditional upon possession of a trainee licence. Generally, it was contended that the decision which Mr Nai seeks to challenge was solidly based and there was no good reason to disturb it.

I am not persuaded that there is a good reason to allow this appeal. I am very sorry to learn that Mr Nai has had to contend with the difficulties referred to in his notice of appeal. In a proper case, delays in securing test dates may certainly justify the Tribunal in overturning refusals by the Registrar to grant second or third licences. But I see no sound basis for such a decision here. As already explained, the effect of the appeal is that the current licence was automatically extended until the date of the Tribunal’s decision. In other words, he has by appealing secured the protection of ‘the badge’ for a consecutive period of some 18 months to date. There is nothing to justify any extension beyond the date of publication of my Decision. Mr Nai may by now have passed the part three test (on 19 February or on some subsequent date). If so, this appeal will have become academic. If not, granting a further licence would serve no purpose because (as explained above) if Mr Nai did not pass the part three test by the second anniversary of his passing the part one test (1 March 2026) or, by that date, apply for a third chance to do so (there is no suggestion of such an application being made), the part three test was no longer open to him and his only option was to start at the beginning again with part one. Moreover, in so far as they are relevant, I agree with the remarks on the nature and purpose of the training licence system contained in the Respondent’s response and on its website (see above). Those points also argue convincingly against this appeal.

For the reasons stated, I dismiss the appeal.