Paid Driving Instruction?
What’s the law? When do you need to be an ADI?, is there ‘a grey area’ for fleet trainers?
Well the current legislation is Section 123 of the Road Traffic Act shown below:
123.—(1) No paid instruction in the driving of a motor car shall be given unless—
(a) the name of the person giving the instruction is in the register of approved instructors established in pursuance of section 23 of the Road Traffic Act 1962 (in this Part of this Act referred to as “the register” ), or (b) the person giving the instruction is the holder of a current licence granted under this Part of this Act authorising him to give such instruction.
So let’s look at “Motor Car” –
Section 185 of the Road Traffic Act defines what they mean by a “Motor Car”
141A Meaning of “motor car”.
(1)Notwithstanding section 185(1) of this Act, in this Part of this Act “motor car” means a motor vehicle (other than an invalid carriage or motor cycle)—
(a)which is not constructed or adapted to carry more than nine persons inclusive of the driver, and
(b)which has a maximum gross weight not exceeding 3.5 tonnes.
(2)In subsection (1) above “maximum gross weight” has the same meaning as in Part III of this Act.]
Look familiar? It should do –
This is the definition of Category B vehicle:-
“Category B – if you passed your test on or after 1 January 1997 – You can drive vehicles up to 3,500kg MAM with up to 8 passenger seats (with a trailer up to 750kg)”.
(Note the Act does not mention vehicle categories at all. The vehicle just needs to fall within what they define above as a ‘motor car’ which happens to match the Cat B definition)
So basically you only need to be an ADI to teach in a car – the definition of which is above- Buses, Fire engines, Cars with Trailers (although you do in NI – They changed the law to ensure B+E is covered), Vans (depending on weight), Ambulances LGV’s which are above this weight limit etc aren’t covered by the legislation. This is why the DVSA has a ‘voluntary’ LGV register (which they scrapped on January 1st 2017 and turned over to the LGV Industry to run itself).
Motorcycles are slightly different, basically you need to be direct access instructor to supervise anyone above a 125cc, but there is nothing to stop you teaching anyone on a 125cc for payment as long as they already hold a CBT.
I’ve seen a rather spurious argument that, as Ambulance ‘cars’ (Known as RRV’s) are now allowed for NHS use (and those under contract to NHS) under an amendment to the lighting regs as they are classed as a ‘special category’ of vehicle.
While this might be correct for the Road Vehicle Lighting Regulations, there are two things wrong with this interpretation.
The main one as already mentioned, is that vehicle categories don’t come into it and aren’t even mentioned in S123.
The second one is, if this was the case and the class of vehicle in the RVLR’s meant vehicle category, there would be a “Special Category” code on your driving license, and you wouldn’t need Cat B or Cat C1 etc to drive one!
“instruction is paid instruction if payment of money or money’s worth is, or is to be, made by or in respect of the person to whom the instruction is given for the giving of the instruction”
Simple – It’s also classed as “paid instruction’ if its given away free as part of an inducement – i.e. free lessons if you buy this car.
Interestingly it doesn’t actually mention who the payment is to. The normal interpretation is to the person giving the instruction, but it would also covers payment to an organisation.
Money or Money’s worth covers the ‘I won’t pay you but here’s a bottle of whisky’ type situation which leads on to
What about just for ‘petrol money’? Are they paying for instruction or just covering the cost of the petrol?
This was decided in Mahmood v Vehicle Inspectorate (1997) –
It was held by the court that what mattered was the ‘instructor’ had some sort of arrangement with the learner driver and that the arrangement had a ‘commercial flavour’. Receiving money’s worth (a payment for petrol) may amount to a ‘commercial flavour’ for the purpose of the legislation.,
That’s basically it.
There’s no other exemptions (other than for Police Officers) .
So here’s the interesting part.
There is no mention of the instruction being only for a provisional license holder holder , and there is no mention of it needing to be on-road.
Here’s an email from the (then) DSA in 2012 setting out their position:
“Carole Hodgson of Corporate Correspondence,
Thank you for your email of 19 March about off road driving tuition.
There has been no change to the legislation. The Road Traffic Act 1988 (Section 123) – renders it a criminal offence to provide driving instruction for money or monies worth unless the driving instructor is registered or licensed to give instruction in accordance with Section 123(1).
Section 123 applies to all paid tuition, regardless of whether the person receiving instruction possesses a full licence or not. Section 123 applies to instruction on public and private roads and also to off road tuition.“
Fleet Driver trainer to full license holders in a car or light van? – Need to be an ADI
Giving a classroom sessions on how to drive? – Need to be an ADI
Giving off road 4×4 Lessons? – Need to be an ADI
Giving Skid Pan tuition?- Need to be an ADI
Giving race circuit lessons ? – Need to be an ADI
In case you were wondering that why Speed Awareness course trainers have to be ADI’s……
The College of Policing – (The body that’s now responsible for training guidelines throughout all Home Office Forces) says in their official guidance
“Any police force that delivers on-road category B vehicle training to anyone other than police service personnel must be registered as an approved driving instructor with the Driver and Vehicle Standards Agency (DVSA)”
“If a chief constable outsources driver training to a private sector provider, it is important that the provider: – is registered or licensed in line with driver training standards set out by the Driving and Vehicle Standards Agency”
Here’s another email from the DVSA this time from Andy Rice at the DVSA’s Fraud an Integrity Team posted on a recent blog
That’s basically the key facts – if you’re interested in the ‘supposed grey area’ and a few arguments for that – read on.
Whats the grey area then?
There is an argument that you cannot give ‘instruction’ to a full license holder as they already hold a full license.
This is unsupported by case law, and by the Road Traffic Act.
There has never been a case that I can find where this has been determined by a court.
We now take a slight detour into areas of legal theory.
There a several ways a court is allowed to interpret the wording of an Act.
The first one is the normal usage of the word. They can take in from OED – This is known as the literal interpretation. (The literal rule of statutory interpretation should be the first rule applied by judges. Under the literal rule, the words of the statute are given their natural or ordinary meaning and applied without the judge seeking to put a gloss on the words or seek to make sense of the statute.)
The second one is known as the Mischief rule – What was the mischief (or in modern terms, the behaviour) that the law was created to address.
They might consider that Road Traffic Act 1988 makes several references (for example in S164) to “ a person who supervises the holder of a provisional licence“, and ask why the framers of the Act chose the specific words “No paid instruction in the driving of a motor car” instead of something similar to “being paid to supervise a provisional license holder” when they were obviously aware of the distinction.
The might also look at the fact that the ADI Part 3 examination has a sections for Full License Holders, and that the Standard Check also allows you to bring a Full License holder, as evidence that that the registration is not solely linked to learners.
The final method of interpretation is called the ‘Golden Rule‘
“The golden rule allows a judge to depart from a word’s normal meaning in order to avoid an absurd result.”
This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves.
For example, imagine there may be a sign saying “Do not use lifts in case of fire.” Under the literal interpretation of this sign, people must never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of the person who made the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.”
As the language is clear in the act it’s unlikely that this would apply. The wording on the face of it is is straightforward and doesn’t lead to any absurdity such as in the example from Wikipedia above.
Why don’t they do anything about it then?
Well they appeared to be looking at it back in 2006 when the Road Safety Act, proposed amendments to S123 of the Road Traffic Act – But that was a car crash, of a piece of legislation anyway – (see the Section 19 speed limit exemption fiasco which is supposedly coming into force year after year but never does) and it was never enacted.
In fact you can see the DVSA consultation on this here back in 2014, where they were thinking of clarifying the situation.
We propose to activate Schedule 6 of The Road Safety Act 2006 (they never did) which allows more flexibility in defining which paid in car training activities fall within the definition of professional driving instruction.
“At its introduction, the following training activities would not be covered by the new regulatory framework:
- paid ‘in-vehicle’ instruction in respect of other categories of motor vehicle
- paid ‘in-vehicle’ instruction in respect of category B+E
- any statutory assessment of driving, including the driving tests
- training provision given outside of the vehicle or off-road, including:
- ‘classroom based’ training
- skid pan training
- recreational off-road driver training; for example mud, 4×4
- recreational track days
- instrument familiarisation provided by vehicle manufacturers
- driver training provided by MOD instructors to its own operational staff
- driver training provided by police instructors to police staff”
My personal opinion is – When the Act was created originally in the early 70’s there were no ‘off road’ providers – At the time the register was created it was solely to regulate ‘L’ instructors. The only other people that did instruction were the Police which usually taught other emergency services at the time , and that’s why they had an exemption – In effect it’s not in the public interest certainly for off road providers – there are presumably none or very few complaints or incidents for it to be worth an issue, and I think its more important the DVSA crack down on rogue unlicensed L instructors.
Fleet is another area – I can see at some point a greater crackdown on non-ADI fleet trainers, which will probably be as a result of some tragic incident or pressure from DVSA Fleet Register members.
The Courts aren’t daft either, they’re entitled to assume the normal meaning of “Instruction” regardless of if it’s dressed up as “Mentoring”, “Coaching”, or “Assessing”. Anything other that sitting there and saying nothing other than directions, and telling someone if they’ve passed or failed the assessment is likely to be classed as “Instruction”
The argument that the Part 3 ADI exam isn’t suitable for trainers of full license holders, will go when the Part 3 is replaced by the coaching exam in 2017(ish) which is going to bring more pressure on unregistered Fleet Trainers.
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Section 123 of the Road Traffic Act 1988 specifies that an offence is committed if an individual provides driving instruction in a car for money or monies worth and is not authorised by DVSA.
There is also a fraud offence under section 2 of the Fraud Act 2006. If an individual is providing paid instruction in a car without being authorised by us and is operating in a way that the pupil believes that individual is an Approved Driving Instructor then a fraud offence has been committed.
However if an individual is providing paid instruction in a car without being authorised by us and evidence cannot be adduced to show that they are operating in a way that the pupil believes that individual is an Approved Driving Instructor there may still be an offence under section 123 of the Road Traffic Act 1988.”