Proposed driving disqual. - Extreme Hardship argument

TooManyPoints

“…. I wanted to know if the forum thinks/experienced one of the two routes (postal vs in-person) is more successful than the other.”

An Exceptional Hardship (EH) argument  (note: “Exceptional”, not “Extreme”) cannot be made by post. The court will require you to give evidence of the alleged hardship in person under oath. The Magistrates may also want to question you about your argument. As well as that, if you are unsuccessful, the court will not disqualify you in your absence without giving you an opportunity to attend. So all in all, you need to be there.

I don’t really see the point in them giving you the chance to offer your argument by post. Are you sure the proposed disqualification is for “totting up” and is not for a single offence? If it is the latter, you do not have the right to put forward an EH argument.

Because the approach may be different if the points came from a misunderstanding that was corrected such as being caught out by a change of speed limit 4 times within the time it took for the first NIP to appear,

It cannot be different. The EH argument is only to be based on the hardship a ban will cause, not how the driver came to be facing the ban. The circumstances of the offences which led to the penalty points are not to be considered. This is provided in statute -  Road Traffic Offenders' Act, s35.4(a):

(4)No account is to be taken under subsection (1) above of any of the following circumstances—

(a)any circumstances that are alleged to make the offence or any of the offences not a serious one,

In fact, when hearing an EH argument, Magistrates will not be given (and will not ask for) details of how the points were accrued. They will only be told the offence details (e.g. "speeding") which will include simply the dates and the number of points imposed.

Here’s the guidance that Magistrates use when considering an EH argument:

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn..

Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;

Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.

Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;

Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.

proformance

HillStreetBlues said:

Mildly_Miffed said:

The court is going to want evidence that there aren't alternative methods of transport available to him for these treatments, such as dial-a-ride or public transport or hospital-arranged transport.

I would be surprised if that would be a good enough reason,  as many people who don't drive get to hospital appointments.

I struggle to think of a more compelling reason than hospital appointments....

proformance

Arunmor said:

A quick search suggests more is going on here than meets the eye!

Not sure what you mean?

HillStreetBlues

proformance said:

HillStreetBlues said:

Mildly_Miffed said:

The court is going to want evidence that there aren't alternative methods of transport available to him for these treatments, such as dial-a-ride or public transport or hospital-arranged transport.

I would be surprised if that would be a good enough reason,  as many people who don't drive get to hospital appointments.

I struggle to think of a more compelling reason than hospital appointments....

And yet it wasn't a compelling enough reason to avoid the points you've gained.
It will a major inconvenience having to arrange another way to get to the hospital, but there will be other ways, The threshold is much higher than  an inconvenience. 

proformance

TooManyPoints said:

“…. I wanted to know if the forum thinks/experienced one of the two routes (postal vs in-person) is more successful than the other.”

An Exceptional Hardship (EH) argument  (note: “Exceptional”, not “Extreme”) cannot be made by post. The court will require you to give evidence of the alleged hardship in person under oath. The Magistrates may also want to question you about your argument. As well as that, if you are unsuccessful, the court will not disqualify you in your absence without giving you an opportunity to attend. So all in all, you need to be there.

I don’t really see the point in them giving you the chance to offer your argument by post. Are you sure the proposed disqualification is for “totting up” and is not for a single offence? If it is the latter, you do not have the right to put forward an EH argument.

Because the approach may be different if the points came from a misunderstanding that was corrected such as being caught out by a change of speed limit 4 times within the time it took for the first NIP to appear,

It cannot be different. The EH argument is only to be based on the hardship a ban will cause, not how the driver came to be facing the ban. The circumstances of the offences which led to the penalty points are not to be considered. This is provided in statute -  Road Traffic Offenders' Act, s35.4(a):

(4)No account is to be taken under subsection (1) above of any of the following circumstances—

(a)any circumstances that are alleged to make the offence or any of the offences not a serious one,

In fact, when hearing an EH argument, Magistrates will not be given (and will not ask for) details of how the points were accrued. They will only be told the offence details (e.g. "speeding") which will include simply the dates and the number of points imposed.

Here’s the guidance that Magistrates use when considering an EH argument:

When considering whether there are grounds to reduce or avoid a totting up disqualification the court should have regard to the following:

It is for the offender to prove to the civil standard of proof that such grounds exist. Other than very exceptionally, this will require evidence from the offender, and where such evidence is given, it must be sworn..

Where it is asserted that hardship would be caused, the court must be satisfied that it is not merely inconvenience, or hardship, but exceptional hardship for which the court must have evidence;

Almost every disqualification entails hardship for the person disqualified and their immediate family. This is part of the deterrent objective of the provisions combined with the preventative effect of the order not to drive.

If a motorist continues to offend after becoming aware of the risk to their licence of further penalty points, the court can take this circumstance into account.

Courts should be cautious before accepting assertions of exceptional hardship without evidence that alternatives (including alternative means of transport) for avoiding exceptional hardship are not viable;

Loss of employment will be an inevitable consequence of a driving ban for many people. Evidence that loss of employment would follow from disqualification is not in itself sufficient to demonstrate exceptional hardship; whether or not it does will depend on the circumstances of the offender and the consequences of that loss of employment on the offender and/or others.

Thanks for this very insightful response - very grateful!

Yeah, it's strange tat they've seemingly offered a postal option. I could be wrong as it doesn't say anything about either option and how they pertain to "Extreme hardship" specifically, but that was my interpretation.
I've included a redacted copy of it in case anyone is interested.
Thanks,
Z

Aretnap

proformance said:

HillStreetBlues said:

Mildly_Miffed said:

The court is going to want evidence that there aren't alternative methods of transport available to him for these treatments, such as dial-a-ride or public transport or hospital-arranged transport.

I would be surprised if that would be a good enough reason,  as many people who don't drive get to hospital appointments.

I struggle to think of a more compelling reason than hospital appointments....

That very much depends. Could he ask someone else to take him to appointments? Could he use public transport? Or taxis? Or a combination of all three options? Basically how would he get to his appointments if you were run over by a bus tomorrow? That's the sort of question you can expect to be asked. 

Note that as per the guidelines the fact that these options might be expensive or inconvenient doesn't mean they necessarily add up to exceptional hardship. Any driving ban will cause expense and inconvenience - that's part of the point. You need to show that the consequences for you or you dad would be truly exceptional, above and beyond what the large majority of people would suffer because of a driving ban.

proformance

Aretnap said:

proformance said:

HillStreetBlues said:

Mildly_Miffed said:

The court is going to want evidence that there aren't alternative methods of transport available to him for these treatments, such as dial-a-ride or public transport or hospital-arranged transport.

I would be surprised if that would be a good enough reason,  as many people who don't drive get to hospital appointments.

I struggle to think of a more compelling reason than hospital appointments....

That very much depends. Could he ask someone else to take him to appointments? Could he use public transport? Or taxis? Or a combination of all three options? Basically how would he get to his appointments if you were run over by a bus tomorrow? That's the sort of question you can expect to be asked. 

Note that as per the guidelines the fact that these options might be expensive or inconvenient doesn't mean they necessarily add up to exceptional hardship. Any driving ban will cause expense and inconvenience - that's part of the point. You need to show that the consequences for you or you dad would be truly exceptional, above and beyond what the large majority of people would suffer because of a driving ban.

I take your points.

Out of curiosity what in your view would constitute "Extreme Hardship"?

Frozen_up_north

proformance said:

I struggle to think of a more compelling reason than hospital appointments....

You have to be joking... There are patient transport services run by the ambulance service, local council provided transport, even taxis, etc.

If your father receives Attendance Allowance, he will be receiving £72.65 or £108.55 per week towards such costs.

Arunmor

proformance said:

Arunmor said:

A quick search suggests more is going on here than meets the eye!

Not sure what you mean?

I'm trying to figure out whether you are the father or the son (and is there a grandfather to be taken to hospital) and which of you has picked up points for lack of insurance.  It's all rather confusing based on your previous posts.

TooManyPoints

I could be wrong as it doesn't say anything about either option and how they pertain to "Extreme hardship" specifically, but that was my interpretation.

The normal process for somebody who faces a ban is that their case is initially deal with under the "Single Justice" (SJ) procedure (provided the defendant has agreed to that). This is a hearing that the defendant cannot attend. However, if the SJ believes a ban should be considered he will not impose a disqualification. Instead the case will be adjourned (i.e. postponed) to a hearing in the normal Magistrates' Court and the defendant invited to attend.

Normally cases where the driver faces a "totting up" ban are removed from the SJ procedure at the outset and go straight to the normal Magistrates' Court. But occasionally they slip through the net. 

It looks like that is what has happened in your case.

It is important to know whether the proposed ban is for "totting up" or for a single offence. The reason for this is that a formal "Exceptional Hardship" (note again: "Exceptional" not "Extreme") argument is not available for single offences; it is only available under the totting up process.

So what's the history of this? What is the offence and how many active points did you have on the date it occurred? Note that points are "active" for totting up purposes for three years from the date of the offence.

It is important that you find out on what basis the ban is proposed because your approach will have to be be completely different, depending on which it is.