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What is an application for Exceptional Hardship?

View profile for Rachel  Gaffney
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An application for exceptional hardship can be made when a driver has accumulated 12 or more penalty points on their licence within any 3 year period, resulting in the Court determining whether they are to be disqualified from driving under the totting up provisions as set out in s.35 of The Road Traffic Offenders Act 1988.

Under s.35 a driver who accumulates 12 or more penalty points within a 3 year period is liable to a mandatory disqualification for a minimum period of 6 months. An application for exceptional hardship can be made in these circumstances, and if successful your licence will still be endorsed with the penalty points for the offence but you will not be disqualified from driving.

What if penalty points have come off my licence by the time I go to Court? 

The relevant date for the purposes of the totting up provisions is the date of the offence and not the date upon which you attend Court. This will mean that even if some penalty points have been removed from your licence by the time you attend Court you may still be disqualified under the totting up provisions if at the time of the offence this would have resulted in you having 12 or more penalty points on your licence.

How long is a ‘totting up’ ban?

The mandatory minimum driving ban for ‘totting up’ is 6 months, however if you have previously been banned from driving this could increase the length of the ban to 12 or even 24 months.

What amounts to exceptional hardship?

To be successful in an application for exceptional hardship you will have to demonstrate to the Courts that it would cause significant hardship to you, and more importantly to others, if you were to be disqualified from driving.

Examples of this could include:

  • I am a carer for my disabled and elderly mother – she is reliant on me and lives in a remote village which is poorly served by public transport. She is unable to drive and I am required to take her to various hospital appointments.
  • I am a father of three and my wife does not work or drive. If I lose my licence I would lose my job and this would have a detrimental effect on my family if our mortgage/rent cannot be paid. I am also responsible for getting my children to school and their extra-curricular activities which is vital to their learning and development.
  • My job involves travelling around a large geographical area. It is not practical to use public transport due to the locations I am required to visit and the equipment I need for my job. I would lose my job if I lost my licence. This will not only impact on me but also significantly impact the company I work for as they would struggle to recruit a similar candidate to take over my role to ensure their contracts are met.
  • I have a grown-up daughter who is a single parent. I help with the grandchildren by taking them to and from school so she can work to provide for the children. Without my licence I wouldn’t be able to help and my daughter would have to give up her job.

This is not an exhaustive list, and as can be seen it is often the exceptional hardship on others which holds the greatest weight in an application. In support of an application it is advisable to obtain written evidence of the hardship This may be by way of a letter from your relative or friend who is so reliant on your having your licence, or from your employer confirming that if you are disqualified you will lose your job.

How is an exceptional hardship application made?

The application for exceptional hardship to avoid a driving ban is made at a formal Court hearing at the Magistrates’ Court. Having admitted the driving offence the Court will note that you are liable to be disqualified from driving and invite you to attend a hearing so that the Court can consider the length of disqualification to impose. If you do not attend the hearing the Court will impose a driving ban against you in your absence. If you wish to make an application for exceptional hardship it is therefore important that you attend this hearing so that the application can be made.

Ordinarily an application for exceptional hardship is made by way of representations to the Court, supported by written evidence, which you are then required to accept on oath. You could then be cross-examined by the prosecution as to whether anyone else would be able to drive instead of you, or as to the availability of public transport and taxis. The Magistrates’ or District Judge may also ask questions of you to assist them in determining whether there is exceptional hardship in your case.

How often can I apply for exceptional hardship?

Once you have made an application for exceptional hardship you cannot use the same reasons again within a 3 year period. You may however use a different reason within 3 years if your circumstances have changed, for example: you previously applied for exceptional hardship on the basis the loss of your licence would result in you losing your job, but you now require your licence as you have someone reliant on you for caring responsibilities.

How can we help?

If you find yourself facing a totting up disqualification it is vital to contact a solicitor as soon as possible to obtain expert legal advice.

Johnson Astills are experts in criminal law and motoring offences, and offer specialist legal advice in relation to exceptional hardship applications. Our specialist advocates in the Criminal Defence Team are highly experienced and successful in dealing with driving offences and presenting exceptional hardship applications before the Court. As exceptional hardship applications do not qualify for legal aid we offer fixed fees for appointments and representation.

To discuss any motoring offences please contact our Criminal Defence Team at Johnson Astills at our Leicester office on 0116 2554855 or our Loughborough office on 01509 610312.