Exceptional Hardship & ‘Totting Up’ Disqualifications

Under the ‘totting up’ provisions, if a driver receives 12 penalty points or more in any 3-year period, the court must order a disqualification from driving for a minimum of 6 months (Road Traffic Offenders Act (“RTOA”) 1988, s.35). 

This minimum period may be automatically increased if the offender has been disqualified within the preceding 3 years; this period rises to 12 months if the driver has been disqualified for 56 days or more within the 3 years immediately preceding the commission of the latest offence and if there have been more than one previous disqualification, to be taken into account, the minimum totting up disqualification increases to 24 months.

The period of a totting up disqualification may be reduced or avoided for Exceptional Hardship or other mitigating circumstances if the court thinks fit to do so. When considering whether to reduce or not to impose the minimum period, the court will take no account of hardship that is not exceptional hardship or any circumstances which allege that the offence not serious; any circumstances previously taken into account in the preceding 3 years to reduce or avoid a totting disqualification must be disregarded (RTOA 1988, s.35).

Exceptional Hardship cannot be advanced as a way of avoiding a disqualification following a conviction for an offence where disqualification is automatic upon conviction, such as drink driving, it is only relevant to a ‘totting up’ disqualification.

Exceptional Hardship is not defined in law, but many scenarios may amount to Exceptional Hardship and provide grounds to avoid a ‘totting up’ ban. 

Exceptional Hardship is submitted and argued by you, the defendant, as part of your plea. Ultimately, the court will carefully consider whether or not a ban would amount to Exceptional Hardship, but it should be hardship which is beyond that which would normally be suffered.

Exceptional Hardship arguments usually focus on the potential suffering which would be caused to someone other than yourself, wholly innocent third parties, who rely upon your ability to drive, but this isn’t always the case. 

Common examples of Exceptional Hardship may include, where a driving ban will lead to the loss of your employment resulting in financial hardship, or the company you work for or your employees would suffer Exceptional Hardship, if you were unable to drive or maintain your ability to work. In some circumstances, arguments may focus upon your ability to continue assisting with a family member or a section of the public who rely upon your ability to drive. Your argument may also relate to personal difficulties such as your health or your ability to service your debts through a lack of income as a direct result of receiving a disqualification.

If on the balance of probabilities, the court accepts that the circumstances are exceptional and sufficient to justify Exceptional Hardship, they may opt not to disqualify you. If successful, a ‘totting up’ disqualification unlike other disqualifications, will erase all penalty points from your licence. 

If your Exceptional Hardship argument is unsuccessful, assuming that you are within the relevant time limits, you may Appeal the decision to the Crown Court.