Summons to court for a S87 (1) offence

[Debt_Collector]

I am looking to help my father who has received a court summons for a RTA S87 (1) offence for not having a licence when requested to produce it by the police in December 2023

At the time of the alleged contravention my father was in the process of having his licence renewed following him turning 79 years of age in September 2023 (the licence is due for renewal every 3 years as i understand it).

On the renewal application my dad disclosed a medical condition (Sleep Apnoea) and naturally, this resulted in a lot of follow up between the DVLA and his doctor, however his Doctor was not aware of any medical reason why he should not drive, he continued to drive under S88 of the RTA.

At no point was his licence revoked by the DVLA, however the DVLA did write to him in December 2023 to advise that they have been advised of another potential medical issue and asked him to provide details within 14 days or his licence may be revoked- he replied with the information and within 6 weeks his new licence was issued (the issue was not current, and is not affecting him now)

The alleged offence took place while the DVLA were processing his renewal, and given my father knew that he was fit to drive, he continued to do so.

I am in some ways surprised that this has even progressed to court, because surely the fact that his license was eventually renewed in Feb-24 validates his belief that he was always fit to drive- nothing changed in his medical condition between September 2023 and the licence eventually being renewed in Feb-24. 

Does anyone have any advice for how to handle this one?

I have written to his doctor with a SAR to request the details disclosed between them and the DVLA, and for any other information that will help his defence.

I was considering writing to the court to ask if the case could be held local to my Father, as the alleged offence took place far from his home- is this something likely to be granted?

 

[BankFodder]

I'm not sure whether you will succeed in having the case transferred – but why not try?

Whatever, if you don't hear anything – don't take anything for granted and attend at the designated court.

If you can show that his licence was in force – back to back despite the various investigations – then there should be no problem.

In any event, he should plead not guilty and then explained carefully to the court – maybe with a large diagram which he contender in evidence – and make it clear that if there is any offence is because of some misunderstanding but actually, the charge has been caused by a bureaucratic misunderstanding by the charging authorities.
If he gets a "not guilty" then he should certainly ask for the costs of attending court. Don't go for a money grab but keep petrol receipts et cetera.
He should point out to the court that he is very straight dealing. He abide by all regulations. He makes all disclosures. He is very concerned about road safety and understands exactly why these requirements are put in place for a man of his age.

He should not be challenging in court

[dx100uk]

Pinging @Man in the middle

dx

[Man in the middle]

Firstly, your father can ask the court to transfer his case to his local Magistrates’ Court. There should be no problem with this. In the event he pleads not guilty and the matter goes to trial, it is unlikely the police officer will need to attend. The issue in dispute surrounds whether your father could  continue to drive under s88 and the officer cannot add anything to that argument. 

You say he has been summonsed to court. Has he received a summons or has he been served with a "Single Justice Procedure Notice"? It doesn't matter to what I've written below but it may effect the process the court adopts when considering his transfer request.

To benefit from s88 (and so be able to continue driving whilst his application is processed) it requires that:

• He has previously held a licence [presumably “tick”] 
• A “qualifying” application has been received to renew that licence [see below]

But it goes on to say:

An application for the grant of a licence to drive vehicles of any class is a qualifying application for the purposes  above if—
The declaration made in pursuance of section 92(1) of this Act indicates that he is not suffering from a relevant disability. [my emphasis]

Section 92(1) refers to a declaration of fitness to drive and it says this:

An application for the grant of a licence must include a declaration by the applicant, in such form as the Secretary of State may require, stating whether he is suffering or has at any time (or, if a period is prescribed for the purposes of this subsection, has during that period) suffered from any relevant disability or any prospective disability.

You told us this:

“On the renewal application my dad disclosed a medical condition (Sleep Apnoea)”

Sleep Apnoea is certainly a "relevant disability" for these purposes. So reading the Act I would suggest that the application your father made was not a “qualifying application” because he declared  that he had a relevant medical condition. I believe, therefore, that he was unable to take advantage of s88.

The fact that he considered he was fit to drive is not really relevant. Once he has declared a relevant disability the DVLA has a duty to investigate and it is the result of their investigations which determine whether a licence will be granted or not. That is why s88 contains that restriction.  
 

Edited May 30 by Man in the middle

[Man in the middle]

You haven't returned to the thread to give us your views, but a couple of other things strike me which you should consider:

1. You say that at no time was your father's licence revoked by the DVLA. It didn't have to be revoked. It expired in September and his "entitlement to drive" (of which the licence provides proof) expired along with it. He could only continue driving whilst his application was being processed by virtue of s88, and it seems clear to me (based on what you have said) that he was not able to take advantage of the benefits provided by that section.

2. The letter he received threatening to revoke his licence was probably a template letter sent when any medical issues are brought to the attention of the DVLA. But it is clear that beyond September until it was eventually renewed, your father had no valid licence to be revoked.

I believe a "not guilty" plea in court will fail. The basic facts are that your father's licence expired in September, it was not renewed until February because the DVLA were looking into his medical declaration and he could not take advantage of s88. So in December he had no licence and no entitlement to drive under s88. The facts that he believed he was fit to drive and that his licence was eventually renewed may mitigate the offence but they do not provide a defence.

I also asked whether he had received a summons (very unusual these days) or whether he had received a "Single Justice Procedure Notice". The way to proceed from here differs slightly depending on what he has received so if you let me know, I'll advise further.

 

[BazzaS]

Sleep apnoea: used to require the condition  to be “completely” controlled

Sometime before June 2013 DVLA changed it to "adequately" controlled.

I have to disagree with MitM regarding the effect of informing DVLA and S.88

A diagnosis of sleep apnoea doesn't mean a licence wont be granted, and, indeed, here it was.

If the father sought medical advice (did he?) : this is precisely where S.88 applies

https://assets.publishing.service.gov.uk/media/64edcf3a13ae1500116e2f5d/inf1886-can-i-drive-while-my-application-is-with-dvla.pdf

p.4 for “new medical condition”

It is shakier ground if the opinion of a healthcare professional wasn’t sought.

in that case it is on the driver to state they believed they met the medical standard to drive. However, the fact the licence was then later granted can be used to be persuasive that the driver’s belief they met the standard was correct.

What was the other condition?

And, just to confirm, at no point did DVLA say the licence was revoked / application refused?

I’d be asking DVLA Drivers’ Medical Group why they believe S.88 doesn’t apply.

S.88 only applies for the UK, incidentally.

If your licence has expired and you meet the conditions for S.88 you can drive in the U.K., but not outside the U.K. 

Edited June 2 by BazzaS

[Debt_Collector]

Thank you for your responses.

As requested, some more detail. Please forgive, I'm writing this on my phone which always makes for less than perfect grammar.

My Dad tries but English not his 1st language, i'm born and bred in England, a qualified accountant and i often help him with his admin.

On this occasion I helped my dad put in his renewal driving licence application around 6 weeks before expiry and with it the disclosure of his sleep apnoea.

Once the licence expired I told him to get in touch with his GP, because the DVLA were offering only radio silence at that time (excuses of backlogs When I called to chase up).

The GP charged £30 for an opinion letter on his ability to drive based on his medical history- at the time I didn't take a copy of the letter, but I am hoping this will be key evidence that we can rely on as to why s88 applies because in the GP opinion they saw no reason he couldn't drive

i need to see the letter again as im going only on memory- we forwarded the letter in a chase up / complaint to the DVLA. 

In December, everything went quiet RE the sleep apnoea (i presume his GP had given assurance) but the DVLA noticed there had been a 2nd medical issue in the past, when my father suffered a one off mini stroke 3 years prior.

That condition had long been resolved via an operation (on his brain of all places, it was a scary time, but he came through unscathed) and he's never had an issue since. We were able to respond to that query very promptly (within the 14 days) and the next communication was the licence being granted 2 months later. DVLA have been very slow in responding every step of the way. 

I realise by not disclosing the mini stroke at the time, and again on renewal (had I known I'd have encouraged it) he was potentially committing an offence, however that is not relevant to the current charge being levied, which is that he was unable to rely on s88 because of a current medical issue (not one that had been resolved). I could be wrong, I'm not a legal expert!

The letter is a summons I believe because its a speeding offence (59 in a temp roadworks 50 limit on the A1, ironically whist driving up to visit me). We pleaded guilty to the speeding but not guilty to the s87. 

DVLA always confirmed to me on the phone that the licence had not been revoked and that he "May" be able to continue to drive. They also confirmed in writing, but the letter explains the DVLA offer no opinion on the matter and that its up to the driver to seek legal advice.

I'll take the advice to contact DVLA medical group.

I'm going to contact the GP to make sure they received the SAR request for data, and make it clear we need to see a copy of the opinion letter.

In terms of whether to continue to fight this, or to continue with the defence, do we have any idea of the potential consequences of either option?

Thanks all

[Man in the middle]

  

On 02/06/2024 at 22:38, BazzaS said:

I have to disagree with MitM regarding the effect of informing DVLA and S.88

A diagnosis of sleep apnoea doesn't mean a licence wont be granted, and, indeed, here it was.

 I didn’t say it wouldn’t. That is not the issue here. To continue driving after the licence has expired (under s88), the driver must have submitted a “qualifying application”.  An application disclosing a relevant medical condition (of which sleep apnoea is one) is not a “qualifying application”, This means the driver cannot take advantage of s88 and must wait for the DVLA to make its decision before resuming driving.  

On 02/06/2024 at 22:38, BazzaS said:

However, the fact the licence was then later granted can be used to be persuasive that the driver’s belief they met the standard was correct.

The driver’s belief is irrelevant. The fact that a licence was eventually granted may mitigate the offence, but does it does not provide a defence.  

On 02/06/2024 at 22:38, BazzaS said:

If your licence has expired and you meet the conditions for S.88 you can drive in the U.K., but not outside the U.K.

But this driver didn’t meet the conditions. I explained why in my earlier post. He only meets the conditions if his application does not declare a relevant medical condition. His did.  

On 02/06/2024 at 23:38, Debt_Collector said:

DVLA always confirmed to me on the phone that the licence had not been revoked

As I explained, after his birthday he did not hold a licence that could be revoked.  

On 02/06/2024 at 23:38, Debt_Collector said:

I'm going to contact the GP to make sure they received the SAR request for data, and make it clear we need to see a copy of the opinion letter.

In my view it doesn’t matter what it says. The offence is committed because his application declared a medical condition. Meanwhile his licence expired and s88 is not available to him. The GP letter would form part of the material the DVLA would use to complete their investigations. But until those enquiries are completed he could not drive.  

On 02/06/2024 at 23:38, Debt_Collector said:

In terms of whether to continue to fight this, or to continue with the defence, do we have any idea of the potential consequences of either option?

The offence does not carry points or a disqualification (because a licence could have been held by your father). It only carries a fine and the guideline is half a week’s net income. If he pleads guilty that fine will be reduced by a third. He will also pay a surcharge of 40% of that fine. But the big difference is prosecution costs: a guilty plea will see costs of about £90 ordered whilst being convicted following a trial will see costs in the region of £600.

[BazzaS]

(See the link to DVLA’s INF188/6 document I posted above, page 4 as cited)

“I have a new medical condition that I have told the DVLA about on my recent application.

Can I drive?
As soon as the DVLA receives your correct and complete application for a new licence and as long as you meet all the Section 88 criteria, you may drive.

It is important that you are satisfied that the medical condition you have declared on your application does not stop you from driving. If you are unsure, check with your doctor or healthcare professional before you make a decision.

You can also look up your condition in the ‘Assessing fitness to drive’ guide, which you can find at www.gov.uk/dvla/fitnesstodrive to see whether you meet the medical standards for driving.

As this guide is intended for healthcare professionals, it can be complicated. Your doctor or healthcare professional should be able to help you if necessary."

It seems that DVLA think that S.88 does apply for applications disclosing a new medical condition after all.

Why might this be so, and what of “qualifying application" and "relevant disability"?

S. 92(1) imposes on the driver a requirement to disclose a relevant disability.

S.92(3) requires the Secretary of State to refuse such an application disclosing a relevant disability ….. EXCEPT

S.92(4) requires the Secretary of State to grant such an application if the relevant disability is “adequately controlled”.

Hence my belief S.88 can apply for medical conditions (if the driver meets the medical standard of fitness to drive) as the application remains a qualifying application IF the driver meets the medical standard of fitness to drive, until DVLA (on behalf of the Secretary of State) say it doesn’t, provided the driver believes they meet the (medical) standard.

Additionally, at (or before) June 2013 (as noted in my previous post) the medical standard for fitness to drive for conditions involving excessive daytime sleepiness was changed from “completely controlled” to "adequately controlled".

 

[Man in the middle]

Thanks for that, Bazza. It sheds some more light on things but I’m still by no means sure of the OP’s father’s likelihood of successfully defending the charge. This in particular from the guidance stands out me:

Quote

“As soon as the DVLA receives your correct and complete application for a new licence and as long as you meet all the Section 88 criteria, you may drive.”

He does not meet all the s88 criteria. S88 is clear and unambiguous:

Quote

“the declaration made in pursuance of section 92(1) of this Act indicates that he is not suffering from a relevant disability.”

It makes no provision for either the driver or a medical professional to make a judgement on his fitness to drive under s88. S92(4) and the June 2013 guidance you mention defines in what circumstances the SoS must issue a licence. It does no modify s88 in any way.

However, delving further I have noticed that the DVLA provides a service where the driver can enter a relevant medical condition to obtain the correct documentation to apply for a licence:

https://www.gov.uk/health-conditions-and-driving/find-condition-online

I haven’t followed this through because I don’ have the answers that the OP’s father would give to the questions they will ask and in any case it requires the input of personal information and I don’t want to cause complications with my driving licence. It is possible, however, that the end result (apart from providing the necessary forms) is a “Yes/No” answer to whether the driver can continue to drive (courtesy of s88). With that in mind, I should think at  the very least the OP’s father should have completed that process but there is no mention that he has.

The Sleep Apnoea Trust gives some useful guidance on driving and SA:

https://sleep-apnoea-trust.org/driving-and-sleep-apnoea/detailed-guidance-to-uk-drivers-with-sleep-apnoea/

I know nothing about SA at all and found It interesting to learn that there are various “grades” of the condition. But the significant thing which struck me is that it is only the least trivial version that does not require a driver to report his condition to the DVLA. But more significant than that is that the SA Trust makes no mention of continuing to drive once the condition has been reported.

The danger here is that the court will simply deconstruct s88 and reach the same conclusion that I have. I accept, having looked at the DVLA guidance, that there may be (as far as they are concerned) scope for s88 to apply contrary to the conditions stated in the legislation. Firstly, we don’ know whether there is and secondly we don’t know whether the OP’s father would qualify to take advantage of it.

Of course he could argue that he need no have reported his condition. The SA trust certainly emphasises that the condition should not be reported until a formal detailed diagnosis is obtained. But the fact is he did report it. As soon as he does that, as far as I can see,  s88 is no longer available to him.

Certainly as it stands I maintain my opinion that he was not allowed to continue driving under s88. The only way I would change this is to see the end result of the DVLA exercise I mentioned above. If that said he could continue driving he would have a defence to the charge. Without it I am not confident.
 

[BazzaS]

So, why do DVLA (via that leaflet) say 1) that S.88 MAY allow a driver to be treated as if they have a valid licence (after an application that discloses a medical condition) AND

 

2) before DVLA have reached their licensing decision ? (Since S.88 ceases to apply once they have reached a decision to grant or refuse a licence)

Edited June 4 by BazzaS

[Man in the middle]

Quote

So, why do DVLA (via that leaflet) say 1) that S.88 MAY allow a driver to be treated as if they have a valid licence (after an application that discloses a medical condition)

I honestly don't know, Baz. In addition what I don't  understand (from that pamphlet) is this:

Quote

"While the DVLA is completing medical investigations to decide whether a licence can be issued, we cannot tell you if Section 88 applies to you."

"You and your doctor or healthcare professional are in the best position to consider the Section 88 criteria and to decide whether you should drive while you are waiting for a licence to be issued"

The s88 criteria are quite clear and don't need a medical professional to interpret them . The one most relevant to his topic says that an application is not a "qualifying application" if a relevant disability has been declared. The problem with the word "may" is how does the applicant establish whether me "may" driver under s88 when he has not complied with its conditions? I don't know the answer to that either.

But to further muddy the waters, the pamphlet says this (about :

Quote

To continue driving under Section 88,  you must meet all of the following criteria:

You meet the medical standards of fitness to drive. If you have a medical condition and have been told not to drive by a doctor or healthcare professional, you should not do 
so. If your doctor or healthcare professional is unsure about how a medical condition affects driving, they should refer to ‘Assessing fitness to drive – a guide for medical professionals’

But the s88 statute says absolutely nothing like that at all. It simply says that if you have declared a relevant disability s88 does not apply. The DVLA pamphlet is simply confusing as far as I can see.

That's actually my opinion and that's what I would stick to if it was me making the application. But I'll seek a few opinions from others over the next couple of days.

[BazzaS]

I googled "prescribed disability" to see where it is defined for the purposes of S.92.

I found HMRC's definition, which included deafness. I don't  think anyone is saying deaf people cant drive, though!

digging deeper,  Is it that “prescribed disability” (for the purposes of S.88 and S.92) is defined at:

The Motor Vehicles (Driving Licences) Regulations 1999

WWW.LEGISLATION.GOV.UK

---

These Regulations consolidate with amendments the Motor Vehicles (Driving Licences) Regulations 1996...

 

….. and sleep apnoea / increased daytime sleepiness is NOT included there directly as a condition but only becomes prescribed under “liability to sudden attacks of disabling giddiness or fainting”

(but falling asleep isn't fainting!), so it isn’t defined there as a “prescribed disability” 

Yet, under S.92(2)(b) RTA 1988 “ any other disability likely to cause the driving of a vehicle by him in pursuance of a licence to be a source of danger to the public"

So (IMHO) sleep apnea / daytime sleepiness MIGHT be a prescribed disability, but only if it causes likelihood of "driving being a source of danger to the public" : which is where meeting / not meeting the medical standard of fitness to drive comes into play?

 

Edited June 5 by BazzaS

[Man in the middle]

On 05/06/2024 at 04:48, BazzaS said:

So (IMHO) sleep apnea / daytime sleepiness MIGHT be a prescribed disability, but only if it causes likelihood of "driving being a source of danger to the public" : which is where meeting / not meeting the medical standard of fitness to drive comes into play?

Quite agree, Baz. 

The difficulty as I see it is that until they complete their enquiries, the DVLA does not know how severe the applicant's condition is. All they know is that the applicant has disclosed a "relevant condition". In my view, s88 only provides the facility to continue driving if no such declaration has been made.

However, as I said, I'll put out a few feelers.

[Debt_Collector]

Thank you for this invaluable insight, I'll be keeping a close eye!.

If anything, my feedback to the DVLA would be to make it clear that S88 cannot be relied upon if a medical condition has been disclosed (if that turns out to be the case)