Easy Guide to MOT Disciplinary Points
DVSA have a MOT Disciplinary points system (sometimes called penalty points) and depending on the number of points you get awarded there are various options available as outcomes.
The disciplinary points system was devised by VOSA (now DVSA) to allow them to gauge and compare disciplinary offences. It is not a rigidly designed and enforced system (unlike criminal matters) there is a good deal of flexibility and discretion built in, and sometimes VTS’s and Testers are not prosecuted even when the threshold has been reached.
What do I do if I’ve received a letter or email from DVSA advising me that I have MOT disciplinary points?
In most instances you will already be aware that something has gone wrong because you or a senior member of staff will have been interviewed, probably under caution, by a DVSA Vehicle Examiner (VE) as they investigate what has happened.
If it is a matter concerned with a vehicle test, the standards applied to that test (e.g. pass/fail decisions) or the method used to test the vehicle, then both the Tester and the Authorised Examiner (AE) will face the same level of accusation and potential MOT disciplinary points.
If the matter is regarding the way that the test station (VTS) is run, e.g. Record keeping, calibration, equipment, bookings, signage or processes, then it is unlikely that the tester will be prosecuted.
The first letter or email that you will receive is known as the Contemplated Disciplinary Letter (CDL). It will detail exactly what you are alleged to have done that breaches the MOT regulations, it will detail the penalty that is proposed e.g. Disciplinary Points, Suspension and/or Cessation.
Attached to the email or letter will be copies of relevant documentation related to the case, e.g. Photographs, copies of documents, interview transcripts etc.
The letter will clearly state that you have a deadline to reply by. This is normally 15 working days (or 3 weeks, working days do not include weekends or Bank Holidays)
The reply must answer their letter fully, if it doesn’t then the strong likelihood is that you will be awarded the penalties as detailed in the initial CDL. Our strong advice is that you should seek professional help and assistance to write the reply as dealing with a MOT disciplinary points case at the earliest possible opportunity is by far the best course of action.
Seek Professional Help
The MOT Professional (www.motpro.co.uk) has dealt with many MOT disciplinary points cases over the last 25 years, there isn’t much that we haven’t seen before, so we can advise you on how to proceed, we can even respond on your behalf if you give us authority to do so.
If you fail to respond within the 15 working days, DVSA will deal with the case using the information that they already have and will probably award the penalties as detailed in the initial CDL.
MOT Disciplinary Points Flow Chart
The chart below shows the process that DVSA will follow, you can find it in Appendix 8 of MOT testing guide for test stations – I. Discipline – Guidance – GOV.UK (www.gov.uk)
So, starting at the top:
Your Vehicle Examiner (VE) has found something amiss and sets about evaluating the seriousness.
If the shortcomings are covered in Appendix 8.4 of the MOT Testing Guide, MOT testing guide for test stations – Appendix 8: Disciplinary procedures – Guidance – GOV.UK (www.gov.uk)
There are three sanction levels available to DVSA, these are:
Level 1 (L1)
Advice will be issued to the AE and/or tester in writing via an MOT advisory warning letter/notice and recorded as an MTS event.
Level 2 (L2)
Testing will be suspended until the case has been answered and rectified satisfactorily. Issued via a temporary suspension notice and recorded as an MTS event.
Level 3 (L3)
A disciplinary case will be submitted for:
- previous or repeating failures to adhere to MOT testing service rules or test standards, regardless of the previous role or disciplinary outcomes
- failure to follow DVSA guidance that has been reasonably requested
- other cases of loss of good repute as defined in Appendix 7: Convictions and repute
For matters NOT covered by Appendix 8.4 we move to the next section of the flow chart, where the question “is the current case worth 30 penalty points or more”
Follow the Flow Chart
Should the answer be NO, then the case will be disposed of by means of “Advice”. Advice is listed as “Informal Action”, however any advice will be recorded, the advice will stay on your record for 5 years, and should you face action for the same “offence” within 5 years, it is unlikely that the result will be advice on a second of subsequent occasion.
Advice does not lead to any MOT disciplinary points but could include a recommendation to do some additional training should that be deemed as necessary.
Should the current case indicate that the penalty would be 40 or more MOT Disciplinary points, the VE will create a Disciplinary Action report. In that report the VE will provide full details of the offences committed, evidence such as photographs, copies of documents, witness statements, interview notes and any other relevant material. Once this report is complete, it will be evaluated by a more senior member of the DVSA Enforcement team and a decision will be taken whether to (a) deal with the matter by means of “advice” or (b) to commence Formal “Disciplinary Action” and create the CDL.
Contemplated Disciplinary Letter
The CDL will be transmitted to all concerned parties, usually by email, but also by letter if the individual doeasn’t have a listed email address. Communication will go to the Authorised Examiner Designated Manager (AEDM), the Site Manager (SM) and the Tester if it is a Testing matter.
This is the point when you need to consider whether you are going to take professional advice or not.
Representations have to be completed and returned by email before the 15 day period expires.
Once the 15 day period for representations has expired, the DVSA Disciplinary Team will evaluate the initial report created by the VE, the CDL sent to the AE and/or Tester, the representations made by or on behalf of the AE and/or Tester.
Using the “Balance of Probability” test, the Disciplinary Team will then decide if the case is proven or not. The case may be partially proven therefore the penalties may be reduced, or the AE/Tester may have fully answered the accusations and the case then cancelled or mitigation may have been offered that results in a reduced penalty. Once the decision has been taken, all parties will be notified by email or letter.
The outcome of a MOT Disciplinary Points case will be:
- No Further Action
- Advisory Warning Letter
- Formal Warning with MOT Disciplinary Points and additional training.
- Short Term Cessation (28 days)
- Short Term Cessation with a conditional return to testing
- Cessation for 2 years
- Cessation for 5 years
- Cessation for an Indefinite period.
Balance of Probability
The “balance of probability” test means that “If a normal person, given all of the facts, would consider the AE and/or Tester to be more guilty than not (e.g. 51% guilty) then the case is proven.” This is NOT a criminal proceeding where the level of proof must be Beyond Reasonable Doubt. It is therefore much easier for DVSA to get a conviction at Disciplinary level than it would be to get a Criminal Conviction.
DVSA will pursue a criminal prosecution in very serious cases such as Fraudulent Issue of a Test Certificate where the level of proof is beyond reasonable doubt, and we have seen a number of those over the last 12 months, mainly prosecuting testers for issuing Test Certificates to vehicles that have never been tested at all, often where the vehicle was pinged on a ANPR camera, in a different part of the country at a time the vehicle was supposedly being tested.
Following the Flow Chart, should the result of the case lead to a Cessation, the AE and/or Tester can appeal against the conviction if they feel that DVSA have not followed their own rules, where incorrect interpretation of the facts has occurred, where the penalty is deemed to be excessive or the technical evidence is disputed.
The Appeal has to be sent to DVSA within 14 days (not working days) and the Secretary of State for Transport will appoint an “Independent” member of DVSA to adjudicate.
Secretary of State Appeals are rarely successful and in our view it is essential to have professional help and advice if you want to go down the appeal route.
Authorised Examiners (VTS’s)
Up to 40 points = Advisory Warning
40 – 140 points = Formal Warning (possibly with additional training)
140 – 200 points = Short Term Cessation (28 days with a conditional return)
200+ points = Long term cessation (2 or 5 years depending on circumstances)
500 points from a single offence = 5 year cessation
Testers
Up to 40 points = Advisory Warning
40 – 50 points = Formal Warning (probably with additional training)
50 – 100 points = Short Term Cessation (28 days with conditional return and an Observed Test)
100+ points = Long Term Cessation (usually 2 years in the first instance, can be extended to 5 years)
500 points from a Single Offence = 5 year cessation.
Don’t delay, contact us straight away.
07858 133415