Driver & Vehicle Licensing Agency

3. Mrs A complains about the DVLA’s decision, in January 2019, to refuse her appeal and maintain its decision to revoke her driving licence.

4. Mrs A says that after her driving licence was revoked in June 2018, she appealed the decision and had four independent visual field tests completed. She says all four of these tests showed that she would be fit to drive. However, the DVLA did not consider this evidence and instead sent her for a further visual fields test which indicated that she did not meet the minimum standards. Mrs A says that this test does not give a true reflection of her vision. She says that there should be another way of her proving that she is fit to drive and believes that functionality should be considered.

5. Mrs A says that she understands how important it is to make sure only people with an acceptable level of vision are on the roads, but she does not feel that she has been fairly assessed. Mrs A says that the DVLA has not considered the relevant guidelines and standards of service when it reached a decision on her case. Mrs A says that if the DVLA had correctly considered her four independent visual field tests, and considered functionality, then her appeal would have been successful, and her driving licence would have been reinstated. She says that this situation has left her feeling angry, frustrated, despairing at the system, and isolated. She says that the DVLA’s decision, and not being able to drive, has had a profound impact on her life.

6. Mrs A is looking for recognition that the DVLA did not consider appropriate guidelines and standards of service before making its decision. Mrs A would like the DVLA to reconsider its decision to revoke her driving licence.

7. Mrs A was given a short-term licence in November 2014, for a period of three years. She was informed by the DVLA that she would need to reapply for her licence when the three years were up. Short-term driving licences are given when a driver has a medical condition which needs to be reassessed on a short-term basis. The validity of these licences may be anything from one to five years.

8. Mrs A reapplied for her driving licence in October 2017, and in January 2018 the DVLA said she needed to attend a visual field test. Mrs A completed an Esterman Visual Field test in January 2018, and this showed she did not meet the minimum requirements. The DVLA therefore requested that she attend a second visual field test.

9. The second Esterman Visual Field test took place in May 2018 and, as before, Mrs A did not meet the requirements for licensing, making her ineligible to drive. The DVLA subsequently revoked her licence in June 2018 and gave Mrs A details of how she could challenge the decision.

10. In July 2018, Mrs A submitted four visual field tests. Upon receipt, the DVLA said that two of the tests contained too many false positives and only one of the remaining tests would meet the DVLA’s criteria. The DVLA invited Mrs A to reapply for her licence but also asked her to take a Goldmann test. This is another type of visual field test that aims to test the extent of an individual’s peripheral vision.

11. Mrs A completed the test on 13 November 2018 and after considering the results the DVLA decided that she should undergo an ophthalmology examination. However, Mrs A did not undergo an additional examination and instead the DVLA used the September 2018 consultation as part of its decision making process.

12. Mrs A’s application was refused in January 2019. The DVLA’s letter said that she did not meet the minimum standards (based on current legislation) and therefore her application had to be refused. Mrs A complained to DVLA about the handling of her visual field test evidence. One of DVLA’s senior medical advisers said:

‘The vision panel has discussed on a number of occasions the issues of variability between visual field tests and has advised on a number of occasions (April 2002, March 2004, December 2005, October 2017 and March 2018) that the chart most favourable to the individual should be accepted for licensing purposes. On that basis, and as DVLA are able to make licensing decisions from Henson Esterman charts, it is my view that DVLA should have invited reapplication from Mrs A on the basis of the June 2018 chart which met the visual field standard, and to have issued a licence based upon that chart. This would probably have been a one-year licence as the progressive nature of Mrs A’s visual field defect was resulting in an increasing proportion of charts being obtained which failed to meet the required standard.’

13. Following receipt of this letter, Mrs A requested the DVLA refer her complaint on to the Independent Complaints Assessor (ICA). She said that she had experienced significant distress since her first attempt to renew her driving licence in September 2017 and hoped for a positive outcome from the ICA’s examination of her complaint. The ICA provided Mrs A with its report in October 2019.

14. The ICA partly upheld Mrs A’s complaint, although it made it clear it would be unable to assist her attempts to regain her licence, nor would it be able to challenge the medical opinions of those involved in the decision-making process. Like the ICA, we have not considered the validity of the medical expert opinions in this case as there is no dispute over the clinical evidence, rather, we understand the dispute is over the consideration of that evidence in the DVLA’s application of its guidance.

15. In its report, the ICA recommended that the DVLA make a consolatory payment of £250. This payment was in recognition of the DVLA’s delays between October 2017 and May 2018. This is because Mrs A submitted her application to the DVLA in October 2017, but it was not until May 2018 that the DVLA acted. Specifically, there was a delay between October 2017 and January 2018, when the DVLA requested the tests, and then a second delay between February and May 2018 when the tests were reviewed.

16. The ICA said that a delay totalling seven months was ‘more than normal processing times and was maladministrative’. In addition, the ICA criticised the DVLA’s use of standard letters after it sent a standard letter in September 2018, particularly as, at the time of this letter, Mrs A did not have a pending application lodged with the DVLA. The DVLA has said that the ICA’s report is the final part of the complaints process. However, it says that someone challenging a licensing decision also has the option to lodge a formal appeal at the magistrate’s court. The records show that Mrs A did not do this. It would then be for the magistrate’s court to decide on any ongoing appeals regarding Mrs A’s licence.

Concern that tests should be functional in nature

19. Mrs A’s complaint centres on the DVLA’s decision to revoke her driving licence, as she did not pass its visual field tests. The DVLA requires all drivers to meet certain standards for its minimum field of vision. These are laid out in law, specifically Regulation 3(1C) The Motor Vehicles (Driving Licences) (Amendment) Regulations 2013. Those standards are also reflected in the visual disorders section of the DVLA’s ‘Assessing fitness to drive: a guide for medical professionals’.

20. Mrs A remains dissatisfied with the DVLA’s response to her complaint about its refusal to renew her driving licence. She says the DVLA’s decision to decline her application for a driving licence has had a detrimental impact on her daily life. Moreover, she says that the DVLA’s reliance on visual field tests, rather than considering functionality, is unfair as she says the DVLA’s own literature refers to functionality in many places.

21. Mrs A says that she feels anxious before taking a vision field assessment and believes this is why she does not perform well. She thinks the DVLA should allow her to take an alternative test, particularly one that considers functionality, to ensure a fairer, more accurate result.

22. The law requires all drivers with a valid licence to have a minimum field of vision. The legislation defines this in quite technical terms. This is another concern of Mrs A’s, as she says such technical terminology is difficult for a lay person to understand. In cases where a visual field assessment is required, the Guide sets out that there are three main criteria. The DVLA:

· requires the method to be a binocular Esterman field test · may request monocular full field charts in specific conditions · exceptionally, may consider a Goldmann perimetry assessment carried out to strict criteria.

23. The criteria above make it clear that the required test for testing field of vision is generally the Esterman test. This is because DVLA is satisfied that it is the most robust way of ensuring compliance with the Regulation 3(1c) of The Motor Vehicles (Driving Licences) (Amendment) Regulations 2013, which sets out:

‘The Group 1 visual field standard is— (a) a measurement of at least 120 degrees on the horizontal plane; (b) an extension of at least 50 degrees left and an extension of at least 50 degrees right; (c) an extension of at least 20 degrees above and an extension of at least 20 degrees below the horizontal plane; and (d) no significant defects present within a radius of the central 20 degrees’

24. The only alternative method of assessing an individual’s visual field would be a Goldmann assessment but, as referenced above, there are strict criteria for this. In addition, there is also the possibility an individual may be considered as ‘exceptional’ and can apply for a licence based on those criteria.

25. While we appreciate that Mrs A feels that a different test, focusing more strictly on functionality instead of visual field, would be fairest in her case, the DVLA does not have the option of accepting such a test. It must take steps to satisfy the requirements of the legislation, so in our view there is no indication of maladministration in it not making provision for a functionality-based test in the way Mrs A would like. Neither can DVLA change the wording of the legislation to make it clearer and less technical, as only Parliament can do this. Then the only option open to Mrs A obtaining a licence was to put forward a case for exceptionality.

26. Mrs A has indicated in her correspondence that she believes her case should be considered based on exceptionality. Mrs A said she would have applied under the exceptionality criteria, but the DVLA informed her this did not apply unless additional medical evidence was provided, including visual field assessments. Mrs A questioned this and said in her opinion the question of functionality should be considered.

27. In its report, the ICA outlined the criteria for exceptionality, as set out in the Guide, and the strict and limited criteria that must apply for a case to be considered as exceptional:

· the defect must have been present for at least 12 months and caused by an isolated event or a non-progressive condition · there must be no other condition or pathology regarded as progressive and likely to be affecting the visual field (panel’s advice is that certain medical conditions, for example glaucoma and retinitis pigmentosa, would always be considered as progressive and so could not be considered as exceptional cases) · sight in both eyes · no uncontrolled diplopia · no other impairment of visual function, including no glare sensitivity, contrast sensitivity or impairment of twilight vision · clinical confirmation of full functional adaptation.

For exceptional cases considered to be potentially licensable under these criteria, the DVLA will then require a satisfactory practical driving assessment at an approved centre …’

28. Mrs A has questioned the criteria, particularly because she says that as a layperson these have little meaning to her and may come across as confusing to the average person. However, it is worth noting that the criteria above are not designed with the public in mind but are crafted to assist the DVLA’s doctors and medical experts who undertake the medical tests and carry out assessments. They are based on the Regulations section 3(1E) and again, for this reason, the DVLA is obliged to remain faithful to the requirements of the legislation in both the way it considers applications and in its explanations.

29. In relation to Mrs A’s case, the ICA considered the question of exceptionality and how the DVLA considered this. The DVLA explained that Mrs A has a visual field ability that does not meet the criteria, primarily because the medical condition she suffers from is viewed as ‘progressive’, rather than exceptional.

30. Having looked through the documentation provided, the DVLA identified indications that Mrs A’s field of vision had deteriorated. As such, there is no indication that the DVLA failed to consider Mrs A’s field of vision, and the exceptionality criteria. In line with its Guide, it is clear that a licence cannot be given where the applicant has a progressive condition.

31. We understand that Mrs A is unhappy with the DVLA’s decision not to renew her licence and the negative impact this has had. She has clearly set out the very significant impact that being unable to drive has had on her life. However, we cannot see any indications of service failings in respect to the DVLA’s decision. Visual field tests are required to evidence compliance with the law and so the DVLA has to use them. Mrs A has raised the possibility of undertaking other tests or being considered as exceptional, but the DVLA has appropriately explained that she does not meet the criteria for exceptionality.

DVLA’s handling of Mrs A’s four tests

32. While the DVLA cannot change the tests required, there are indications that the DVLA could have done more to consider Mrs A’s evidence, specifically, four tests she submitted to the DVLA. The DVLA discounted two of the tests on the basis that there were too many false positives, in line with the Guide. However, this leaves two tests.

33. We asked the DVLA about these two remaining tests, particularly why it did not consider these further. The DVLA said that of the two remaining charts, one did not meet the visual standard required so could not be considered. However, this means that there was one chart which did meet the DVLA standards and could therefore have been considered further.

34. The DVLA provided us with the information from its senior medical doctor who said that they believed Mrs A’s reapplication should have been invited and a one-year licence potentially issued based on Mrs A’s favourable chart in June 2018. Therefore, there are indications that the DVLA should have issued a one-year licence, which would be up for renewal in mid-2019.

35. The DVLA did not consider the remaining test Mrs A submitted, which it should have done in line with the Guide. We consider this to be maladministration and have therefore considered the likely impact.

36. If the DVLA had not made this error, it is likely that a one-year licence would have been issued. Given that Mrs A’s condition is progressive, she would have needed to reapply after 12 months, and we cannot give any view on the balance of probabilities that she would have been successful in that application.

37. Given that her condition is progressive, meaning her eyesight will only ever get worse, and the fact her tests in 2018 were already very borderline, the evidence available suggests it is very unlikely that she would ever have passed any subsequent tests and had a successful application. Depending on the speed of the deterioration of her eyesight, she may have had to stop driving within a year of the 2018 tests, even if she had been given a one-year licence.

38. This means that the injustice to Mrs A is that she was denied up to a year of driving. She was also caused frustration and distress by the fact that DVLA did not consider her field tests fairly, nor give her a clear and consistent response for its position.

39. The DVLA has already recognised the failings identified and apologised, and the ICA has recommended a financial remedy of £250, which includes remedy for distress caused by delays. These are not part of the complaint we agreed to look at as part of our work.

40. The only outcome Mrs A seeks is for the DVLA to reconsider its decision and issue her with a licence. This would not be an appropriate remedy for the injustice caused, as it would not put her back in the position she would have been in without the DVLA’s error. At this point in time, she still would not have a licence, even if no mistakes had been made.

41. As such, we consider that the DVLA has already taken all the steps it might reasonably take to put right the impact of its mistakes on Mrs A. We cannot give any view that Mrs A would have been granted a longer-term licence, or that that a one-year licence would have been extended. While the DVLA made mistakes, it has already taken appropriate action to put things right so we do not uphold this complaint.

1. We have carefully considered Mrs A’s complaint about the Driver & Vehicle Licensing Agency (DVLA). We have decided to not uphold it because we have not seen any indications that the DVLA made mistakes in asking Mrs A to undergo visual field tests, rather than tests which are more closely related to functionality.

2. Where the DVLA did not appropriately consider one of the visual field tests that Mrs A submitted in mid-2018, we can see that the DVLA made mistakes but has already taken steps to put things right. Therefore, we have decided to not uphold this complaint.