Totting Up and Exceptional Hardship - Can I avoid a penalty points ban?

Totting Up Disqualifications - The Law

The Law applies to holders of a full driving licence. In the case of New Drivers, meaning drivers who have had a full licence for less than two years, the relevant number of points is 6 points. This would include any points which the driver received whilst the driver had a provisional licence within 3 years. A court hearing is triggered when a person accepts a fixed penalty of three points when he or she has 9 points on his licence. The defendant is summoned to court to give reasons why he should not be disqualified.

These rules apply to offences committed within a 3 year period. The dates when the points are awarded are not considered. So if points have expired since the offence, but before the court proceedings, then the disqualification is still applicable. However, this means that it is also necessary to look at the date of the first relevant offence, not when points were awarded, to check that the points do span over a period of less than 3 years. If not, then the totting up provisions do not apply.

The disqualification is for a minimum of 6 months, although the magistrates have a discretion to increase it if they think it is necessary. However, this is relatively rare. If the defendant has had another disqualification of over 56 days in the last 3 years, then a totting up disqualification is for a minimum of 12 months. If he or she has had two disqualifications in the last 3 years, then the minimum disqualification is for 2 years.

Will the Court take my personal situation into account?

The court can take into account hardship that imposing a ban will cause, but only if it can be classed as so-called 'exceptional hardship'. In reality, this means either hardship that affects the licence holder in a way that goes beyond normal hardship, or alternatively unpleasant consequences affecting innocent parties.

The law recognises that most people will suffer if they lose their license, such as not being able to drive children to school, not being able to get to work easily, or even losing a job. These hardships on their own will not usually amount to exceptional hardship unless more can be shown about how this will affect the driver or others affected by this.

Examples of what a court will consider to be Exceptional Hardship can include:

• A restriction on mobility for a driver with severe health problems.

• A threat to the job stability of employees if a manager, business owner or key employee is unable to fulfil their role (other work-related effects may be relevant).

• If the driver works in a career with a high level of importance to the health or safety of the public, or a specific group of people.

• Loss of a career, if supported by relevant supporting information and presented well, might be enough, but not without the right preparation, good advocacy, and sympathetic magistrates. Loss of a job, on its own, will usually not amount to grounds to keep the licence.

What makes a good Exceptional Hardship Argument?

In a totting up hearing, there is no single key to success in the legal argument. The penalty points solicitors should consider a combination of several elements in order to have a chance of saving the driving licence.

These include:

• A set of facts which can be presented as exceptional or at least unusual

• Excellent, persuasive advocacy

• Thorough and organised preparation with the client, well in advance of the hearing

• Supporting evidence in the form of documents or even live witnesses for every fact mentioned

Conclusion

Whether a person receives totting up ban is dependant on individual circumstances, the situation of the driver, and a well-prepared argument being submitted. It is always worth seeking initial free legal advice from experienced penalty points solicitors if you or a family member are potentially facing a ban.