Road Traffic Offences: Totting Up and Exceptional Hardship

Whenever a driver accumulates 12 penalty points within a period of 3 years then the court must order their disqualification from driving.

This procedure, which is carried out in accordance with section 35 of the Road Traffic Offenders Act 1988, is known as the totting up rule.

Under this rule, a driver who has not previously been disqualified for a period of 56 days or more in the preceding 3 years, will be subject to a minimum disqualification of 6 months; a driver who has been disqualified once for a period of 56 days or more in the preceding 3 years will be subject to a minimum disqualification of 1 year; a driver who has been disqualified twice (or more) for a period of 56 days or more in the preceding 3 years will be subject to a minimum disqualification of 2 years.

Whenever a driver commits an endorsable offence that would ordinarily trigger a totting up disqualification they have to attend court in person. They will either receive a postal requisition to that effect or be rerouted from the Single Justice Procedure. At the hearing they can either accept the disqualification on the chin or, as is increasingly popular, put forward an exceptional hardship argument in a bid to avoid (or lessen) disqualification.

Exceptional hardship, just as the name suggests, occurs when the circumstances of a driver mean that disqualification would have a disproportionately harsh impact upon them or, more likely, other people.

Disqualification is meant to punish the driver by making their life less convenient and giving them ample time to reflect on the standard of their driving when they do eventually get their licence back. Exceptional hardship goes above and beyond the normal hardship and inconvenience of disqualification.

If the court accepts that exceptional hardship would occur as the result of the disqualification, it has to power to disqualify for a shorter period of time or to not disqualify at all.

There are no hard and fast rules about what qualifies as exceptional hardship, so it really boils down to the opinion of the bench on the day.

The following circumstances might amount to exceptional hardship:

• Loss of employment: For example, the driver is a business owner whose business would fail and employees would lose their jobs if they were disqualified. 
• Financial hardship: For example, the driver relies entirely on driving for their income and could therefore not afford the mortgage of the family home if they were disqualified.
• Carer responsibilities: For example, the driver lives in a rural area and is the carer of someone with a serious medical condition who needs regular hospital visits.
• Impact on health and safety: For example, the driver is a doctor who needs to drive to carry out home visits to patients.

Suppose a driver was successful with their exceptional hardship argument, they would not be able to submit the same argument again within the next 3 years.

I am not a fan of the exceptional hardship rule, as some lawyers know how to play the system to their client's advantage rather than in the spirit the legislation was intended. It cannot be right that there are drivers on the road with 20+ points on their licence, who have committed multiple offences to get that far.

Further reading:

Traffic Law in England, Wales and Scotland (aff. link), by K. M. Hughes.