The relevant standards
When we investigate, we generally begin by comparing what actually happened with what should have happened. To decide what should have happened, we use general standards that we apply to all cases13 as well as standards specific to the organisation complained about. We then assess the facts against the standards. If the organisation’s actions fall far short of the standards, we decide if that is serious enough to be maladministration.
The Regulators’ Code
- DVLA is a regulator and has to abide by the Regulatory Principles and should have regard to the Regulators’ Code14 . This sets out the requirements for regulators to:
- Carry out their activities in a way that supports those that they regulate. This includes the need for the approach to be proportionate, that their officers have the necessary knowledge and skills to support those they regulate, and that their officers understand the statutory principles of good regulation.
- Provide straightforward ways to engage with those they regulate and hear their views. This includes engaging with those they regulate, taking on board customer feedback and satisfaction ratings and providing clear complaints and appeal procedures.
- Base their regulatory activities on risk. This includes taking an evidence-based approach to determining risks in their area of responsibility, considering risk at every stage of their decision-making process, designing a risk assessment framework and reviewing it regularly, and reviewing the effectiveness of their activities in delivering their desired outcomes.
- Ensure clear information, guidance and advice is available to help those who they regulate to meet their responsibilities. This includes providing guidance that is published in a clear and accessible form and having mechanisms in place to consult those that they regulate.
- Ensure that their approach is transparent. This includes publishing clear service standards, setting out what can be expected from them, and providing information on how they can be contacted, how they provide information and guidance and what those being regulated can expect.
The Road Traffic Act 1988
The Road Traffic Act 1988 (the 1988 Act) sets out the rules for safe driving and covers driver licensing. Section 92 (2)(a) of the 1988 Act requires licence holders to tell DVLA about any medical condition that may affect their fitness to drive if that condition is likely to last longer than three months. The 1988 Act refers to prescribed, relevant and prospective disabilities when talking about medical conditions.
There is also a legal obligation, under section 94 (1), on the applicant/licence holder to notify DVLA of any medical condition which may affect their fitness to drive at any time. In addition members of the medical profession, the police and members of the public may also notify DVLA if they become aware that a licence holder might cause a threat to road safety because of a prescribed or relevant disability.
Section 88 of the 1988 Act allows licence holders to drive while their application is being considered as long as their application for a licence is less than one year old; they have not previously had their licence revoked; they drive under the conditions of their original licence; and they are confident that their condition would not cause DVLA to revoke their licence.
If DMG concludes that a person is not fit to drive, it should provide the medical reason for this and let the licence holder know when they would be eligible to re-apply. DMG should also let licence holders know that they have a right to appeal to the Magistrates’ Court. DVLA normally recommends that the applicant or licence holder checks with their doctor that they meet the medical standards of fitness to drive (set out in DVLA’s Assessing fitness to drive15) before re-applying.
The legislation clearly shows that DVLA’s role is to assess whether a driver with a medical condition poses a threat to road safety because of the effect of that condition on his or her ability to drive. Our reading of this is that a licence should be revoked if a medical condition means that the driver is no longer able to carry out this activity safely. It therefore follows that a decision to revoke a licence should be based on an understanding of how the condition affects a driver’s functional ability to drive. Despite much research and investigation, we have been unable to establish any standards that can be used to measure how a medical condition affects fitness to drive.
Prescribed disabilities are:
- severe mental disorder;
- liability to sudden attacks of disabling giddiness or fainting which are caused by any disorder or defect of the heart as a result of which the applicant for the licence or, as the case may be, the holder of the licence has a device implanted in his body, being a device which, by operating on the heart so as to regulate its action, is designed to correct the disorder or defect;
- liability to sudden attacks of disabling giddiness or fainting, other than attacks listed above; and
- persistent misuse of drugs or alcohol, whether or not such misuse amounts to dependency.
In the case of disorders of the heart there are exceptions, which allow a licence to be granted if the condition is controlled.
The 1988 Act defines relevant disabilities as a disability that is either prescribed in legislation or any other disability that is likely to cause the driver to be a ‘source of danger to the public’.
The legislation does not say how DVLA must assess whether someone has a relevant disability, although it gives DVLA the powers to seek medical evidence. Section 92 says that DVLA must revoke or refuse to grant a licence if it ‘appears’ to it from the driving licence application declaration, or it is ‘satisfied from other information’, that the applicant has a relevant disability. As such, DVLA has wide discretion about how it makes licensing decisions in this group and to decide what disabilities it considers causes the driver to ‘be a source of danger to the public’.
A prospective disability is any medical condition which, because of its progressive or intermittent nature may develop into a prescribed or relevant disability in the course of time. Examples of prospective disabilities are Parkinson’s disease and dementia. Drivers with prospective disabilities are normally issued with a driving licence subject to review in one, two or three years.
The Motor Vehicles (Driving Licences) Regulations 1999
The Motor Vehicles Regulations 1999 (the Regulations) set out the rules around who can hold a licence and what is needed to allow the Secretary of State for Transport to award licences. The Regulations set out the need for vocational drivers to provide the Secretary of State (in reality DVLA) with a signed medical report showing that s/he ‘is not suffering from a relevant or prospective disability’ when they apply for or renew their licence. It also sets out the need for the Secretary of State to carry out investigations into visual field defects and cognitive functions and behaviour, and high risk offenders (those with drug or alcohol dependence) in considering fitness to drive for all licence holders (Section 75). Diabetes, visual acuity, sight in only one eye, liability to seizures and epilepsy are set out as prescribed disabilities for vocational drivers (Section 73) under the Regulations.
EC Directive 2006/126/EC (the 3rd EC Directive)
The Directive was implemented by The Motor Vehicles (Driving Licences) (Amendment) Regulations 2012 and came into force in the UK on 19 January 2013. This legislation brought in mandatory medical checks on the renewal of a Group 2 (bus or lorry) licence and allows shorter period licences on grounds of age or disability. It increases the level of medical checks that must be made of vocational drivers. The Directive also enables the Secretary of State to require medical evidence on administrative renewal of any licence.
DVLA service standards
Until recently DVLA’s published service standard for considering fitness to drive was that it would complete 90% of investigations within 90 working days. This service standard was in place when all of the cases that we have investigated were being considered by DMG. It does not currently have a published service standard setting out how long it will take to consider fitness to drive applications. DVLA has explained that it is focusing its work on improving customer experience across the board and is therefore moving away from arbitrary numerical targets.
Types of driving licence
All drivers have to hold an ordinary (or Group 1) driving licence. However, those who drive large or heavy goods vehicles (HGV) can also apply to hold a vocational (or Group 2) licence. In order to hold a vocational licence a driver must periodically demonstrate that they meet more stringent medical standards than ordinary drivers. Vocational drivers have to periodically renew their licences. They must give DVLA a signed medical report showing that they are ‘not suffering from a relevant or prospective disability’ when they apply for or renew their licence. Vocational licences are renewable every five years for drivers between the ages of 45 and 65 and annually after this.
Exceptional case criteria
The exceptional case criteria states that Group 1 (or ordinary) drivers who have lost their licence because of a visual field defect which does not satisfy the standard, may be eligible to re-apply to be considered as exceptional cases on an individual basis, subject to strict criteria. These are that the defect has been present for at least 12 months; the defect must have been caused by an isolated event or a non-progressive condition; there must be no other condition or pathology present which is regarded as progressive and likely to be affecting the visual fields; the applicant has sight in both eyes; there is no uncontrolled diplopia16; there is no other impairment of visual function, including glare sensitivity, contrast sensitivity or impairment of twilight vision; and there is clinical confirmation of full functional adaptation. If these criteria are met a driving assessment can be arranged to assist DVLA in its decision whether to issue a licence.
15 Assessing fitness to drive – a guide for medical professionals was published in March 2016 and replaces the At a Glance Guide that had been in place for the preceding 25 years.
16 A pathological condition of vision in which a single object appears double.