In this month’s DIA Casebook we look at the case of an ADI who, in arguably following her moral compass, found herself off track – and possibly off the register for good.
Lois from Chelmsford is a warm and affable person – instantly engaging, a wry sense of humour and a real hit with her pupils. Commencing training a year or so ago, after a career in customer service, she wanted to combine a love of dealing with people, experience of providing high levels of customer care and a passion for training and development, in a new career.
Like many PDIs she struggled at first to find the right trainer and fit the training in while still working in her other job (not everyone can give up a regular salary at first to go full time as a trainee). Family issues meant her original training period was a stressful one and she struggled, having to take her Part 3 a couple of times. Finally, however, with the help of a good trainer, she nailed it. Only to have her standards check six months later – and fail.
Lois was clearly devastated and confused. The circumstances of the standards check itself were challenging, and with hindsight Lois feels she should have challenged the result. She also questioned how she went from a great result on her part 3 only months earlier to a fail on her first standards check.
With elderly parents in ailing health at home, and questioning her own ability to work in this field after all, Lois was getting very disheartened at the prospect of ever becoming an ADI full time. Then came the letter informing Lois that the Registrar would not be admitting her to the register at this time.
Lois clearly had to think about what steps she took next and whether she should continue to pursue this dream at all. But one thing she did know was that she had a number of pupils who were deemed test ready at the time and she fretted as to how best to help them.
She sought advice from a local test centre manager who advised that while it may not be advisable, she technically could still bring those pupils to test, if she did that strictly without charge.
She discussed this with the pupils in question, explaining the situation and promising she would do her best to find an alternative trainer if they did not want her to take them to test. All the pupils in question wanted Lois with them during their test. Lois made it clear she would not ask, nor take any fee, for any training or accompanying them to test from this point.
In the next month, Lois took a number of pupils to the local test centre. She was working with another train the trainer and looking to re-apply to the register. It wasn’t an ideal time, she was struggling with no small amount of self doubt and stress, as well as her finances as she gave up her full time salaried position, and juggled a part time role and training. But she was keeping her head above water.
Then came a second letter from DVSA stating that her car had been seen on a number of occasions at test, and that as she was not admitted to the register at the time, this constituted a breach of the Code of Practice and was deemed not fit and proper behaviour. The evidence? Simply the recording of her registration when a pupil was on test and tallying that with the fact that she wasn’t admitted to the register at the time.
Lois immediately contacted the DIA for advice. Lois’s main challenge was that she understood the regulation, and the imperative in the Road Traffic Act about not charging a fee for training, and had acted in accordance with that legislation and regulation – she did not feel she should face being barred from the profession on this basis.
As we do, because we have to help the member and the case best, we grilled Lois on the allegation she had taken the pupils to test for a fee, and were convinced of her innocence and so began to advise her on the appeals process. An appeal was lodged on the grounds that Lois had not taken any fees and a date soon came through from the GRC (General Regulatory Chamber) for a first tier tribunal.
In the meantime her case handler at DIA advised Lois contact her pupils and obtain testimonials stating she had not taken payment, in addition to other testimonials of her good character. This proved fundamental to her case.
To those not familiar with the appeals process, the appellant files their appeal and gives the reasons why they are appealing and what they want the outcome of the case to be. DVSA as the Respondent is then given time to look at the appeal and compile their response. The appellant is then given sight of that response and leave to raise any further challenges triggered by that, and submit any further information in support of their case.
We noted in the first bundle that the main crux of DVSA’s argument was that they found it ‘incredible’ that anyone would take so many pupils for test for no financial reward.
In the hearing itself, we were able to provide a compelling level of credibility to Lois’s claims of not having sought or taken financial reward. No only was she able to produce the testimonials from her pupils that she had clearly communicated her situation, allowed them to exercise their right to go to test with another trainer and advised she could accept no fee for this training, Lois also produced testimonials from two charities she volunteered for, demonstrating that she regularly gave her time and expertise to others for no financial reward.
What was also compelling was the fact that, when queried, the representative of the Registrar, was not able to provide solid evidence Lois had actually taken financial reward. Indeed, it transpired the pupils, whose tests had been noted as taking place in Lois’s car at the time, were never approached by the regulator directly to question whether a fee had been charged. So ‘incredible’ was the thought that anyone would be so altruistic, perhaps that viewpoint had negated (in their minds) the need to speak to the pupils directly and understand whether a financial transaction had taken place. A lesson for the future perhaps.
The upshot of the case was a month after the hearing we had the good news that Lois’s appeal had been upheld and DVSA contacted her to advise she could now re-apply to join the register. The tribunal’s summary opined that the appellant had been honest and transparent in their representation and that the arguments given by Lois and her representative from DIA had been compelling, whilst the DVSA’s response seemed disproportionate – not having clear evidence of a transactional relationship between the pupil and the trainer, perhaps the leap was made too soon to bar Lois from the profession.
Lois is still considering whether she does re-apply to the register. Clearly, while being vindicated at appeal, the process has left her doubting whether this is the right career path for her. Knowing Lois (as you get to when working on cases like this) it would be a loss to the profession not to have trainers as dedicated to their pupils as she clearly was, even when it meant risking her own career.
We respect that the regulator does need to take a sceptical view at times of ADI conduct, and the defence they provide for an alleged breach of conduct. For every Lois, there are a number of trainers plying a trade without the necessary licencing, and misleading both pupils and the regulator whilst making money off the back of that. DVSA must be watchful of that and be robust in how they deal with offenders to protect pupils, honest and professional trainers, and the integrity of the industry. As trainers must also be aware of the risks of continuing to take pupils to test without the necessary registration and licensing, whether or not they do so for financial gain.
And clearly, in all honesty, we will sometimes feel challenged in representing members in issues such as these. As a professional membership body for the industry, concerned with promoting high standards of training, it is a dichotomy defending members technically not licenced and yet still delivering training – it can be seen on one side as running contrary to the Code of Practice and regulation.
But at the same time when a member has done their utmost to jump through all the hoops and get on the register, and is still in the mode of trying to be compliant, (and they have also tried to fulfil what they feel are their obligations to the pupil) and has a genuine defence and rationale for their decision making – and when just maybe a regulator has leapt too soon on their decision making – it is our duty to represent and one we take very seriously.
*Names and circumstances have been changed.
For advice on any aspect of your professional role, please do not hesitate to contact our helpdesk. All cases are treated in confidence.
Source: ADI News
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