Totting & Exceptional Hardship Explained

Totting occurs when one collects 12 penalty points from driving offences within a three-year period. If this happens, you will be liable for a totting up ban – a driving disqualification for at least six months.

However, with the help of driving offence solicitors, a totting up ban can be avoided in certain circumstances. This means offenders can continue to drive despite having 12 or more active penalty points on their licence. In order for this to take place, the Court has to decide whether or not the loss of an offender’s license will cause ‘Exceptional Hardship.’ Consultant Solicitor Charles Waddell advises how to avoid a totting up ban by explaining exceptional hardship.

Woman on phone committing driving offence

What is Exceptional Hardship?

In order to determine what exceptional hardship means, the criminal courts can broadly apply the approach taken by Lord Scarman. Lord Scarman considered the meaning of exceptional hardship within the Matrimonial Causes Act in 1982, stating specifically:

  • In choosing the imprecise concept of exceptional hardship, Parliament deliberately intended that what is or is not exceptional hardship be a matter of fact for the judge to decide on his own subjective judgement.
  • It would be wrong for an appellate court to define the concept of exceptional hardship with any precision, or to try and lay down guidelines as to how the concept should be applied.
  • The decision made at the first hearing should be treated as final unless it can be shown as clearly wrong.

Exceptional hardship is considered on an individual basis depending on the unique circumstances of the motorist. Because of this, it’s recommended to seek the advice of driving offence solicitors. They can build an exceptional hardship case to reduce or avoid a totting up ban.

Consequences of a Totting Up Ban

Anyone with a driving licence will know how reliant they become on driving. Commuting to and from work, travelling as part of work, driving for leisure, moving children about, assisting elderly relations with their day-to-day living, shopping and so on – these are all examples of how motorists depend on driving.

The loss of one’s licence can have devastating consequences. Therefore, if totting is on the cards, the consideration of an exceptional hardship hearing at court may be vital.

Exceptional Hardship Hearing

An exceptional hardship hearing will generally be listed at a later date to obtain relevant evidence for the Court. Although it can sometimes be dealt with on the same day as the totting hearing, it will depend on advice at the time.

The burden of establishing exceptional hardship is on the offender. It is up to them to convince the Court (on the balance of probabilities) that it exists. At this point, a driving offence solicitor should represent you to argue your case in the best way possible.

What equates to exceptional hardship is a question of fact to be judged by the Court on the evidence. It must be something ‘out of the ordinary,’ since all disqualification will normally cause some kind of hardship.

So, what does this mean in plain language? Generally, if you’re going to be disqualified from driving and other wholly innocent people are going to suffer as a result, exceptional hardship is more likely to be found by the Court. The ‘other people’ could be your employers, who rely on you to drive in order to do business. They may be your family, who depend on your income to pay the rent or mortgage, and without a licence you would lose your job. There could also be others who rely on you being able to drive on an ongoing basis, such as elderly or vulnerable relatives.

Totting & Exceptional Hardship: Case One

I remember a vicar facing a totting up ban (who initially wished to challenge the legality of the speed camera that recorded his minor speeding infringement!). He gave oral evidence at his Exceptional Hardship Hearing and told the Court if he lost his licence, he would use his bicycle. The vicar explained he would thoroughly enjoy this, since he would get fitter, lose weight and would appreciate the experience of cycling in the countryside. The problem was that, because his parishioners were so widely spread, he would be unable to visit the more vulnerable ones on a regular basis. This was a concern both to him and them. The Court found exceptional hardship on this point alone.

Totting & Exceptional Hardship: Case Two

Another case involved a young driver who lived with his grandmother and worked for a large car manufacturer. He had borrowed money from her to buy a car so he could travel to and from work. Unfortunately, the driver had been very unlucky and managed to amass 18 penalty points. He faced a minimum totting up ban of six months. Since the driver worked shift work, it was difficult to get to the plant on public transport at night. It was likely he would lose his job.

The loss of employment does not always amount to exceptional hardship, which can be hard to come to terms with. In the aforementioned case, the defendant’s grandmother attended court with her grandson and gave evidence. The Prosecutor suggested if her grandson lost his job, she could support him until he found other employment.

The grandmother responded by telling the Prosecutor she couldn’t do that. She had lent her grandson money from her savings to help buy his car. It had been agreed his money would be paid back to her on a weekly basis, together with the contribution to household and living expenses over two years. The fact she had lent him this money meant she didn’t have any other funds available to cover him not working. It would undoubtedly cause her hardship if her grandson was unable to pay of his debt, as agreed between them.

The Court found exceptional hardship in these circumstances. I don’t know how he managed to pay his insurance premiums! However, he was allowed to keep his licence and therefore his job.

Avoid a Totting Up Ban with Driving Solicitors

The way courts are run at present often means ‘guilty pleas’ to driving offences are dealt with by one court. If a totting disqualification is expected, there is a temptation and sometimes desire by the Court to let a sentence hearing run on into an exceptional hardship hearing. This is never a good idea, unless you have seen a driving offence solicitor prior to the hearing. You must have planned for the event. There is potentially for one chance to avert a disaster and avoid a totting up ban. In my experience, trying to ‘wing it’ often goes badly wrong.

If you’re facing a totting up ban and believe you may be able argue exceptional hardship, contact Major Family Law for an initial consultation without charge. Or if time is of the essence, speak to Charles Waddell, Consultant Solicitor by calling 078 0271 7418.