captain cab wrote: I understand a local authority is about to advise its drivers that as soon as they get 6 penalty points on their driving licenses they will have the take a DSA driving test.
Is it a fetter?
with the local authority not permitting the driver a right of appeal or hearing, as soon as they get 6 pts they must take a DSA test.
regards
Captain cab
Determining if the DSA test is a condition or not might appear complicated but in theory a good old judicial review will sort it out once and for all. I think the question you ask goes way beyond fettering discretion. There are other concerns which may apply such as, is the condition ultra vires, or reasonable? It would be wise to look at the resolution minutes and see if the condition only applies to the renewal of a license?
The case law appertaining to Kaye assumes the DSA resolution is legal, the judge made a point of mentioning that Mr Kaye had not challenged the reasonableness of the resolution by way of judicial review. He implied Mr Kaye could have gone down that road if he wished.
The Kaye Judgement was about a council satisfying itself if a person is fit and proper to hold a license. The Judge said they were in their rights to satisfy themselves that an applicant was a competent driver to the standard they required, in order to grant a license. The goalposts have been moved somewhat because what you have here is a council that might be applying the DSA test when the license has already been granted.
Darlington borough council said they introduced the condition in order to give them a broader approach when it came to suspending licenses.
In hindsight Mr. Kaye should have taken the council to judicial review and questioned the legality and reasonableness of the condition imposed by the council. This situation will never be resolved until such time it does go to judicial review.
There is no mention in either the 1847 or 1976 acts, which state an applicant has to pass an advanced driving test. It is the catch all, "fit and proper person" clause in both acts, that is allowing councils to impose such conditions.
In Kaye, the Judge differentiated between the condition in that case and the condition applied in the Wathan case. What the Judge basically said in Kaye was, "the condition was already in place" he was referring to the "fit and proper person condition" as defined in both acts.
The judge in his wisdom implied that, the "DSA test was to inform the council, if the fit and proper person condition in the relevant acts, could be met". In other words what he is saying is, "the DSA test is not a condition as such" but a request for information in order to satisfy a condition, the condition on the statute being that of "fit and proper person".
Intriguing isn't it? There is a different flavour to this resolution than the one introduced by Darlington. In most cases the license might have already been granted, so they are using the DSA test as a something other than a request for information. If the license has already been granted? Then it may follow that the mandatory imposition of the DSA during the twelve-month or two-year period when the license is in force is indeed a condition.
Subject to appeal, the council have the right to impose certain penalties on a license holder during the period the license is in force. It might then follow that the DSA test in these circumstances could amount to a penalty and therefore it should be subject to the appeal process governing penalties.
The only way to test this condition is by way of judicial review but who's going to do that?
Best wishes
JD
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