Totting up ban: can exceptional hardship stop a 12-point disqualification?

If you have reached 12 points on your licence, you may be facing a totting up ban and the prospect of losing your driving licence for at least six months. For many motorists, this raises immediate concerns about employment, family responsibilities and financial security. 

While reaching 12 or more penalty points can have serious consequences, a driving ban is not unavoidable in every case. Where a driver can demonstrate exceptional hardship, the court has the discretion not to impose the otherwise mandatory disqualification. 

Understanding what the court looks for, the evidence that may be required and the circumstances that can amount to exceptional hardship is essential if you are facing a potential driving ban. 

What happens when you reach 12 points on your licence? 

Under the totting-up provisions of the Road Traffic Offenders Act 1988, a driver who accumulates 12 or more penalty points within a three-year period will be liable for a driving disqualification. 

For most drivers, the minimum period of disqualification is six months, unless there has already been a totting ban within the same three-year period, in which case the starting point is a 12-month disqualification. 

Many motorists ask, “how many points before a ban?” In most cases, the answer is 12 penalty points accrued within three years, although the outcome will depend on the circumstances of the case. 

What does the court look for in an exceptional hardship case? 

Exceptional hardship is a legal argument allowing a court not to impose the otherwise mandatory totting disqualification. 

The court recognises that losing a driving licence can be inconvenient, expensive and disruptive. However, these consequences alone will not normally be enough to avoid a ban, as some level of hardship is intended given this is meant to be a punishment. 

The hardship must be exceptional, although there is no specific definition of how this criterion can be met. Hardship to others can also be considered by the court and, in fact, hardship will more readily be considered exceptional if it affects people other than the driver. 

When considering whether exceptional hardship should prevent a totting up ban, the court will look beyond the normal inconvenience associated with losing a driving licence and will focus on the particular circumstances of the case. 

What circumstances could amount to exceptional hardship? 

Examples of circumstances that may be relevant include: 

• Loss of employment: Where disqualification would result in the loss of a job, particularly where driving is essential to the role and realistic alternative employment is unavailable. 

It should be noted that loss of employment alone will not be enough to be considered exceptional hardship. It would necessarily require serious financial consequences. 

• Impact on dependants: Where children, elderly relatives or family members with disabilities rely on the driver for essential care, medical appointments, transport or support. If alternative arrangements are not available, this could present a compelling argument. 

• Impact on third parties: Where the consequences of disqualification would fall disproportionately on unrelated parties such as a charity or religious institution. The loss of support to the many people relying on the charity work of the motorist could be sufficient to constitute exceptional hardship. 

These are examples rather than guarantees of success. The court will look at the particular facts of every case and any supporting evidence. 

Why is losing your job not enough? 

One of the most frequent arguments advanced is that a motorist will lose their job if disqualified. The courts in recent years have taken an increasingly dim view of this argument alone, as the motorist ought to have been cognisant of such an impact when driving, yet continued offending. 

Loss of employment should be considered a starting block for exceptional hardship. If a motorist had recently won the lottery, or had millions of pounds in savings, would a disqualification really cause them exceptional hardship? Unlikely. That is why the consequences of the loss of employment are so important. 

An argument could succeed where the loss of employment would cause the motorist to lose their home. This could be argued as beyond the usual financial difficulties associated with a driving ban, impacting both the motorist and their family. 

It is important to evidence how family finances rely upon the wages from employment. If the bills and mortgage cannot be afforded, this will help provide the argument. The court may also want to explore other options available. Can new employment be sought? Could money be borrowed to pay bills? Could a partner increase their working hours and income respectively? 

The court no longer accepts these exceptional hardship arguments at face value. It will often probe the viability of alternatives before acceding to the motorist’s plea. It is therefore very helpful to have supporting documentation. It can also be persuasive to show you have considered possible ways to adapt to life with a disqualification, albeit to no avail. 

What about my personal life? 

The court will not find exceptional hardship on the basis that you can no longer play sports on a Sunday or watch your favourite team. That is likely a hardship, but not an exceptional one. 

Family and personal responsibilities can be developed to form a compelling argument, but it must go beyond mere inconvenience. 

For example, if you are responsible for transporting a child with additional needs to specialist appointments, caring for an elderly parent or supporting a family member whose mobility is severely restricted, this can form an argument. 

The court will, however, explore whether another person could undertake those responsibilities or whether alternative arrangements could be made. 

What evidence should you prepare? 

Evidence to support these arguments may include: 

• A letter from an employer confirming the consequences of disqualification 

• Bank statements and financial information 

• Confirmation of mortgage payments, rent and other financial obligations 

• Medical evidence 

• Appointment schedules 

• Statements explaining the practical difficulties that would arise if you were disqualified 

The most persuasive evidence will depend on the particular circumstances of the case and the hardship being relied upon. 

Better particulars can be provided by our specialist motoring solicitors, as each case is unique and the best evidence will depend on the circumstances and argument being advanced. 

How is the exceptional hardship argument presented? 

The court will need to hear evidence from you as the defendant. You will explain to the court the implications of a disqualification and the hardship that will result, ideally supported by documentary evidence. 

It would be of assistance to have specialist representation to help present the argument effectively before the court. 

It should be noted that the court can only consider hardship that would be suffered immediately. It is not able to consider what may happen in the future. Therefore, losing employment may be relevant, but an inability to obtain new employment generally will not. 

The court will consider whether the hardship is genuinely exceptional and, if it finds that it is, it is not required to impose the standard six-month totting up ban. It may impose a shorter ban or no ban at all. 

If the court does not disqualify, all points remain on the licence and motorists will need to drive extremely carefully, as the same exceptional hardship arguments cannot be relied upon again within the next three years. 

If the application is unsuccessful, the court will impose the totting disqualification. Should this happen, there is an automatic right of appeal to the Crown Court. It is also possible to apply for the disqualification to be suspended pending the outcome of an appeal. 

Why legal advice can make a difference 

Exceptional hardship arguments require careful preparation and presentation. The prospects of success must be carefully considered and, wherever possible, the argument should be strengthened through supporting evidence and a thorough examination of the relevant facts. 

Our specialist legal advice is particularly important where a totting up ban could have serious consequences for you or your family. 

How we can help 

If you are facing a totting up ban after reaching 12 points on your licence, obtaining advice at an early stage can make a significant difference. Exceptional hardship arguments are fact-specific and require careful preparation, supporting evidence and effective presentation before the court. 

Our specialist motoring law team, led by Nick Terry, regularly advises motorists facing disqualification and can help assess the strength of any exceptional hardship argument, identify the most persuasive evidence and guide you through the court process.

Get In Touch

Nick Terry is a Partner in our Crime & Regulatory team and Head of the Road Traffic department. He specialises in motoring, criminal and regulatory matters, representing clients in a wide range of cases including drink and drug driving offences, dangerous driving allegations, causing death by driving offences, totting up disqualifications, professional misconduct proceedings and regulatory investigations. 

If you need assistance with a road traffic offence or would like to speak in confidence, contact us today on 0161 362 1111 or fill out our contact form for a confidential consultation.