Vindication

I've blogged a couple of times about an event that occurred last October.

One of my pupils was on her driving test. She was traveling along a road that split into two lanes before joining a roundabout. On every previous test I've observed, the examiner has given some kind of instruction to use the right hand lane at or before this divergence occurred, but this time, this did not happen. My pupil, having put herself in the correct lane anyway, asked for reassurance/clarification, and the examiners response was to ask if she had ever driven through the tunnel on a driving lesson. His tone was surprisingly aggressive. It seemed to me that he'd been caught napping, and had reacted defensively instead of  'fessing up and apologising and giving confirmation and reassurance that she had chosen correctly.

I appealed on the grounds that the examiner had failed to provide clear direction in good time.

There followed a protracted shenanigans because my pupil had given slightly incorrect personal details. It took a long time, and a lot of my time and attention to sort this out, but eventually, this was sorted out, and the DVSA investigated my complaint.

They found against me, after investigating the situation, an investigation that at no point involved speaking to my pupil. They just took the examiner's word for it, and because the examiner had given correct instructions at the roundabout, and because he had correctly marked her driving.

I sent my appeal up a level, because what I was complaining about was not the marking of the test, or the instruction given at the roundabout, but the lack of instruction given on approach to the roundabout.

This appeal too was rejected, on pretty much the same basis. No contact was made with my pupil. No reference was made to the point where the instruction should have been given. The DVSA instead concentrated on the (correct) instruction given at the roundabout.

At some point in all this, I'd also  realised that if she was in a right hand only lane, without being asked to be there, she should have had some kind of fault marked against her in regards to response to road signs and road markings, or possibly planning and awareness, but that no fault had been marked.

I appealed again, this time to the third and highest level. This involves senior executive staff at the highest level of the DVSA. Their response was the first to actually address the point at which my appeal was based, rather than at the roundabout, several hundred yards further ahead. My appeal was still rejected, and my pupil had still not been contacted for her side of the story.

I thought this was the end of the line.

Since I'd sat there and watched as something completely anomalous happened, I was resigned, but pretty disillusioned. Then I re-read the appeals procedure details, and I noticed something I'd forgotten. If after taking my appeal to the highest level, I was still unhappy, I could ask for my complaint to be submitted for independent assessment by an independent assessor.

He contacted me asking me to get my pupil to contact him, and I passed his request on but received no response. My pupil is not the most socially confident of people. I emailed back, explaining that for whatever reason, my pupil chose not to respond to my message. He then contacted me again, with a google map of the precise area this incident covered, and I was able to annotate the map, with a detailed description of events as I saw them.

This was acknowledged, along with an estimate of the timescale before a decision would be reached.

Today, this decision was emailed to me. The bold stuff is serious. It carries weight and expects to be acted upon. 

It's a long document, but here are the findings:

My view

1. Turning first to the DVSA’s handling of your case, I agree that it took too long (eight working days) to query Jess’ details, particularly given the target to reply substantively within ten working days. In this time you seemingly had to chase to get the case moving. I also agree that the DVSA’s communications about this were confusing. I recommend that the DVSA reviews its practices and considers whether its customer service could be improved by an earlier check on new complaint correspondence to ensure that all the necessary information is available. This initial poor service, and the confusing claim that you had been asked for the correct details sooner, was an inauspicious start.

2. You provided the correct details on 20 October and the complaint was referred to the driving test centre for investigation four working days later, deadlined for 31 October. This seems a long time to me but I must commend the local driving test manager for the clear priority he afforded to the case, returning comments based on a review of the documentation and conversation with the examiner the following day. I will consider the depth of the DVSA’s investigations shortly.

3. The remainder of the correspondence unfolded as follows:

You DVSA

20/10/2017 3/11/2017 (day 10)

3, 6 & 13/11/2017 22/11/2017 (day 8 from most recent correspondence)

22/11/2017 7/12/2017 (day 11)

7, 8 & 13/12/2017 20/12/2017 (ICA referral on day 5 vs. target of two weeks)

4. These intervals appear reasonable to me given the fact that further comments were obtained at every stage. The ICA referral was also timely.

5. I have commented in the previous section that the DVSA’s responses were unconvincing. Neither of the November emails placed the examiner’s question to Jess in context. The impression given was that Jess’ query followed a timely instruction to turn right at the roundabout. Having looked carefully at your correspondence and submission to me, and the DVSA’s evidence, my view is that your account of the sequence of events is more plausible. In particular, I cannot see why a candidate already in the correct lane on the basis of an examiner’s instruction would then in effect ask whether she should embark on a different route. I therefore consider it more likely than not that the examiner’s directional instruction followed Jess’ enquiry.

6. You have argued throughout your correspondence that the timing of the instruction represented a failure to abide by 1.27. Looking at the map in paragraph 1 along with the road views I reproduce in subsequent paragraphs I note that:

• It is clear that the sign immediately south of Willow Close (paragraph 4) indicates that the A5027 will branch off into a right lane; it is therefore arguable that a broad instruction to follow the road ahead at all times would require the driver to branch right as the road split (and that a 1.06 infringement by Jess in following the road ahead in the right lane might have been unfair)
• It is also noteworthy that the roundabout itself is atypical in that Gorsey Lane traffic has right of way over traffic already on the roundabout
• I also note that the standard Highway Code advice is to stay in the left-hand lane on a dual carriageway unless overtaking or turning right [137]
• However, the Highway Code also states: “You should follow the signs and road markings and get into the lane as directed.” [134] Arguably again, following the signs to remain on the same route in this instance would involve right lane selection.

7. Taking all these factors into account, I think that this was an atypical scenario for a learner driver in a test to second-guess and that clear and timely instructions from the examiner were required. This drive is clearly part of an established test route, and the likelihood of the tunnel exit featuring in a test is low, but that does not obviate the examiner’s duty under 1.27 to be clear. You argue convincingly that other examiners do not allow doubt about the required exit from the roundabout and provide timely direction. On balance I think it more likely than not that the instruction to turn right arrived late on 6 October 2017 to the extent that the examiner’s compliance with section 1.27 is in doubt.

8. You also complained about the tone in which the examiner’s query to Jess was delivered. Obviously I was not present and cannot provide an adjudication based on first-hand observation. A clear opportunity to investigate this aspect of the complaint properly was missed at each of the DVSA’s three stages. The agency focused solely on the examiner’s intention. I don’t think anyone thought that his intention was to belittle Jess or to undermine her performance. But I think that it would have represented good customer service, and investigatory practice, to have telephoned Jess to hear her account of the drive and to understand the impact on her of the examiner.

9. The new test date was on the horizon and a call would have also reinforced the agency’s aim to ensure that avoidable stress was removed from the process. I understand that a different examiner could not be guaranteed under the DVSA’s rules. But I’m sure that a sympathetic discussion of the October drive would have been appreciated by the candidate and would have represented the high level of customer care that the DVSA aims to provide.¹

10. The record of the test did not copy well within the scanned documents referred to me but I also think it likely that the deterioration in Jess’ performance after the Gorsey Lane roundabout would have been discernible from the test record within the local investigation of the complaint. Rather than triangulating the evidence base by looking at this and talking to Jess, the same managerial assurances were trotted out in the first two DVSA responses. This was disappointing given the very serious complaint that examiner conduct had undermined a candidate’s performance.

11. The third response did engage more directly with your arguments about lane selection but did not appear to take on board the possibility that Jess was in the right-hand lane because she had assumed that the tunnel exit would not be part of the test. This seems to me a likely scenario, particularly if parked cars in the run up to the creation of two lanes had already led her to select the right-hand lane. The DVSA’s first suggestion, that Jess may have been schooled on the route, does not to my mind give sufficient weight to the fact that she asked for directions. And I remain of the view that a call to the candidate at this stage would have clarified the impact on her of the examiner’s approach even if the DVSA remained of the view that his intervention had been acceptable.

12. Concluding, I uphold your complaint that the examiner’s conduct of the test fell below an acceptable standard. I think that this represented unfairness to Jess that could and should have been addressed fully during the complaints process. Unfortunately I found the DVSA’s assurances complacent and unconvincing. However, I do not feel that the evidence I have reaches a sufficient threshold for me to conclude that Jess would have passed the test had the examiner’s conduct and performance been better. I therefore partially uphold the complaint and recommend that the agency apologises to Jess for the failings I’ve highlighted and makes her a consolatory payment of £65.

This concludes my involvement in your case. In the event that you remain dissatisfied it is open to you to ask an MP to refer your complaint to the Parliamentary and Health Service Ombudsman, Mr Rob Behrens. His telephone helpline is 0345 015 4033.

Yours sincerely...

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