Unfair Penalty Fair Notice - advice please

[rda]

I travel by rail several times per week. Most of my tickets are bought by a colleague and depending on my departure point the tickets are either posted to me or I retrieve them using my card and the code at the station.

I used to have a Network Railcard but did not renew it as due to the restrictions only once in a year had I qualified for a discount. I believe that I told my colleague that I had not renewed, however, she cannot recall this.

I was travelling from Kings Cross to Kings Lynn and was asked for my ticket. I provided it and was asked for my railcard. I said that I did not have one. The guard said it was impossible to buy the wrong ticket by mistake as one had to actively select a railcard and therefore he was levying a penalty fare. He also pointed out NSE printed on my ticket. I informed him that I did not buy the ticket myself and that there had clearly been a mistake. I also pointed out that NSE on the front of my ticket had hitherto meant nothing to me. I apologised for my mistake and said that I was happy to pay the full fare (as opposed to the advance and discounted ticket that I had). He insisted on the penalty fare.

I said that I wished to dispute this and would pay the ticket price difference and give him my name and address. Which I did.

I wrote to the appeals service and enclosed several of my many recent train confirmations to show that I am a frequent traveller and none of my tickets had been bought with a railcard. My appeal was rejected.

The guard confirmed that he has latitude to waive the penalty, the Penalty Fare Rules indicate that guards have discretion and the existence of an appeals function also implies this. So given that I was clearly not trying to evade a fare I cannot understand why my circumstances did not merit discretion.

Having now researched the Penalty Fare Rules I notice that they state that “An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.” Condition 12 of the National Rail Conditions of Carriage states: “Restrictions apply to the use of some tickets (including those bought with a Railcard) such as the dates, days, and times when you can use them, and the trains in which they can be used…”.

Finally, just to further complicate matters there was a major signalling problem and at Ely I was advised to leave the train and find another route back to London as there was no realistic prospect of getting to my destination in a timely fashion. There was considerable disruption to the network and my original ticket fare was refunded by the train company.

So... Can you help?

1. Should I fight the penalty and if so, on what basis and how?

2. Have I correctly understood the Penalty Fare Rules in relation to a railcard? Should I have even been issued with a Penalty Fare?

3. Given that my ticket was refunded, should my Penalty Fare also be waived as it is for a journey that was not provided?

Can anyone shed any light on my options?

Thanks

 

[bb21]

The Penalty Fare has been correctly issued in this case so I can't see how you can possibly dispute it.

A Penalty Fare is for people making mistakes. If you were suspected of fare evasion, you would have been reported for prosecution.

 

[Urban Gateline]

1. Should I fight the penalty and if so, on what basis and how?

No, the Penalty Fare was correctly issued as you presented a Railcard discounted ticket without the Railcard. You were lucky not to be reported for Prosecution under at least the Railway Byelaws as you failed to present a valid ticket for inspection. (If you present a discounted ticket but cannot show the Railcard then you are treated as if you held no ticket at all)

So I would pay up, it's a small price to pay. Penalty Fares are issued to penalise innocent mistakes, anything with intent to avoid the fare is reported for prosecution.

2. Have I correctly understood the Penalty Fare Rules in relation to a railcard? Should I have even been issued with a Penalty Fare?

No, the bit you quoted is regarding time restrictions, as using an Off-Peak ticket during Peak times cannot result in being issued a Penalty Fare. Your situation is different as you held a discounted ticket but were not able to produce the Railcard.

3. Given that my ticket was refunded, should my Penalty Fare also be waived as it is for a journey that was not provided?

Thanks

This is something I'm unsure of, but I'd guess it's a separate matter, regardless of delays on the day you still travelled on a discounted ticket without having the Railcard, so I would say the Penalty Fare is still chargeable.

 

[yorkie]

I was travelling from Kings Cross to Kings Lynn and was asked for my ticket. I provided it and was asked for my railcard. I said that I did not have one. The guard said it was impossible to buy the wrong ticket by mistake as one had to actively select a railcard and therefore he was levying a penalty fare.

Probably not a Guard, unless this was north of Cambridge?

Rather amusing, given that it certainly IS possible to have the wrong discount by mistake, and that the correct action for a mistake is to charge a Penalty Fare. A Penalty Fare is a higher than usual fare charged to passengers who make mistakes in certain circumstances (not all mistakes are liable to a Penalty Fare, for example travelling via London on a Not via London ticket wouldn't be). But in your case, a Penalty Fare can be charged.

.... the advance and discounted ticket that I had...

It is my understanding that Advance tickets are not available with a Network Railcard, so (ignoring any Railcard issues) the ticket was not actually any cheaper bought in advance, than it would have been on the day.

I said that I wished to dispute this and would pay the ticket price difference and give him my name and address. Which I did.

I wrote to the appeals service and enclosed several of my many recent train confirmations to show that I am a frequent traveller and none of my tickets had been bought with a railcard. My appeal was rejected.

The guard confirmed that he has latitude to waive the penalty, the Penalty Fare Rules indicate that guards have discretion and the existence of an appeals function also implies this. So given that I was clearly not trying to evade a fare I cannot understand why my circumstances did not merit discretion.

It appears you mistakenly believe Penalty Fares are issued to people who are suspected to be evading the fare, but that isn't the case. A penalty fare should not be issued in those circumstances.

Having now researched the Penalty Fare Rules I notice that they state that “An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.” Condition 12 of the National Rail Conditions of Carriage states: “Restrictions apply to the use of some tickets (including those bought with a Railcard) such as the dates, days, and times when you can use them, and the trains in which they can be used…”.

I agree, but you were not being issued with a Penalty Fare for that reason. The reason was that you had a Railcard discounted ticket but no supporting Railcard.

If you had a valid Railcard, but were travelling at a time not permitted by the Railcard and/or travel ticket, then you would be correct to say a Penalty Fare would not be chargeable, and instead an excess fare would apply.

But that's a different situation.

Finally, just to further complicate matters there was a major signalling problem and at Ely I was advised to leave the train and find another route back to London as there was no realistic prospect of getting to my destination in a timely fashion. There was considerable disruption to the network and my original ticket fare was refunded by the train company.

So... Can you help?

1. Should I fight the penalty and if so, on what basis and how?

You can try, but there is no basis I can see.

2. Have I correctly understood the Penalty Fare Rules in relation to a railcard? Should I have even been issued with a Penalty Fare?

I believe so, yes.

3. Given that my ticket was refunded, should my Penalty Fare also be waived as it is for a journey that was not provided?

I am not sure about that. Had you paid it all in full at the time, and submitted the whole lot off for Delay Repay, then maybe it might have been. Perhaps...

 

[rda]

The Penalty Fare has been correctly issued in this case so I can't see how you can possibly dispute it.

A Penalty Fare is for people making mistakes. If you were suspected of fare evasion, you would have been reported for prosecution.

Thank you bb21. You may be right. Certainly there are circumstances where the offence is black and white (Strict Liability offences) and circumstances are irrelevant. But my understanding of the Penalty Fare scheme is that it is intended to deter ticketless travel and by implication this is intentional or careless evasion. The Penalty Fare Rules state that collectors have discretion and there is no appoint in an appeals office if the only defence is that it was not me or the ticket office was closed. So given this I assume there is scope for dispute.

The question is whether it should be on grounds of fairness (and how) or on legal technicality (and how).
--- old post above --- --- new post below ---
Thank you for the comprehensive replies. I guess I should grit my teeth and pay. It is - to put it mildly - annoying. These type of rules create a 'screw-you' environment. I wonder whether the organisations that perpetrate them realise how there are hidden costs. Passengers who each in his/her own way reciprocates the lack of care and respect. A real shame.

 

[Urban Gateline]

Thank you bb21. You may be right. Certainly there are circumstances where the offence is black and white (Strict Liability offences) and circumstances are irrelevant. But my understanding of the Penalty Fare scheme is that it is intended to deter ticketless travel and by implication this is intentional or careless evasion. The Penalty Fare Rules state that collectors have discretion and there is no appoint in an appeals office if the only defence is that it was not me or the ticket office was closed. So given this I assume there is scope for dispute.

The question is whether it should be on grounds of fairness (and how) or on legal technicality (and how).

You do not have a case for appeal though, as you mention, if the ticket office was closed, machines not working (including Permit to travel if applicable) then sometimes there is a case for appealing against penalty fares.

If I were you I would pay the Penalty Fare whilst you still have the opportunity to do so, it is quite possible for FCC to withdraw it and report you for prosecution instead. As you said the Byelaw offence relating to ticketing offences is strict liability and will be much more harmful to you than just a Penalty Fare.

 

[yorkie]

Thank you bb21. You may be right.

He is right.

Certainly there are circumstances where the offence is black and white (Strict Liability offences) and circumstances are irrelevant.

Yes, that is the case. If they wanted to pursue you for a strict liability offence, they could. (I don't agree with it, but it is a fact).

But my understanding of the Penalty Fare scheme is that it is intended to deter ticketless travel and by implication this is intentional or careless evasion.

There is no such thing as "careless evasion". They can prosecute for fare evasion (requires intent; not applicable here) or for simply not having a valid ticket in this case (does not require intent; is strict liability) or issue a Penalty Fare (for a mistake - this does apply here); or they can issue discretion (would be applicable but that is entirely their decision).

The Penalty Fare Rules state that collectors have discretion and there is no appoint in an appeals office if the only defence is that it was not me or the ticket office was closed. So given this I assume there is scope for dispute.

There are no applicable defences in this case as far as I can see.

The question is whether it should be on grounds of fairness (and how) or on legal technicality (and how).

You want to argue with whichever Penalty Fare appeal body FCC use on the basis of fairness? If so, good luck - you'll need it! And on legal technicalities? None that I can see, but perhaps a solicitor can find something. Again, good luck on that one!

By the way, I do not agree with Penalty Fare schemes, I am just stating my interpretation of 'the rules', none of the above is my opinion of what is right. If I felt that you had been treated incorrectly, I can assure you I would say so and assist. But that doesn't appear to be the case.

 

[bb21]

Thank you bb21. You may be right. Certainly there are circumstances where the offence is black and white (Strict Liability offences) and circumstances are irrelevant. But my understanding of the Penalty Fare scheme is that it is intended to deter ticketless travel and by implication this is intentional or careless evasion. The Penalty Fare Rules state that collectors have discretion and there is no appoint in an appeals office if the only defence is that it was not me or the ticket office was closed. So given this I assume there is scope for dispute.

The question is whether it should be on grounds of fairness (and how) or on legal technicality (and how).
--- old post above --- --- new post below ---
Thank you for the comprehensive replies. I guess I should grit my teeth and pay. It is - to put it mildly - annoying. These type of rules create a 'screw-you' environment. I wonder whether the organisations that perpetrate them realise how there are hidden costs. Passengers who each in his/her own way reciprocates the lack of care and respect. A real shame.

Some of us don't necessarily agree with the way the Penalty Fares system is implemented, however unfortunately your case is a quite clear one under the relevant legislation. It is a rather unfortunately set of circumstances from what you have described, but I cannot see any realistic prospect of an appeal succeeding.

With regard to the issue of the effectively cancelled journey, I think they are two separate matters. You may be able to claim a full refund on the ticket, but I am not aware of anything you can use to back up your claim for the cancellation of the PF since you have already made the mistake by presenting a discounted ticket while not entitled to.

 

[sheff1]

Don't know if the Mods want to split this to a new thread, but ...

The question of Penalty Fares and Delay Repay (or similiar) is one I have been unable to find a definitive answer to.

If you are issued with a Penalty Fare it is, of course, a 'fare' and not a 'fine'. On this basis the price charged for this fare (plus whatever, if anything, you had already paid which is offset against the PF) is the 'cost' of the journey you are making.

If that journey is then delayed long enough to qualify for compensation does that mean you will compensated the relevant % of what you have paid including the Penalty Fare ?

I have found nothing to suggest the PF amount will not be included but my gut instinct is that TOCs would, in the event, seek to exclude it.

Can anyone confirm the correct procedure in such a case ?

 

[bb21]

Don't know if the Mods want to split this to a new thread, but ...

The question of Penalty Fares and Delay Repay (or similiar) is one I have been unable to find a definitive answer to.

If you are issued with a Penalty Fare it is, of course, a 'fare' and not a 'fine'. On this basis the price charged for this fare (plus whatever, if anything, you had already paid which is offset against the PF) is the 'cost' of the journey you are making.

If that journey is then delayed long enough to qualify for compensation does that mean you will compensated the relevant % of what you have paid including the Penalty Fare ?

I have found nothing to suggest the PF amount will not be included but my gut instinct is that TOCs would, in the event, seek to exclude it.

Can anyone confirm the correct procedure in such a case ?

Interesting point. I can certainly see where you are coming from.

 

[rda]

Thank you for picking up on the Delay Repay issue. From what I can understand the point is firmly made that a Penalty Fare is a fare and not a fine. On this basis, if my original fare was deemed repayable (and it has been), then so should my penalty fare.

The likelihood of a Penalty Fare and Delay Repay event must be very low. Therefore I would be surprised if the TOCs had been drafted to include this.

Does anyone know?

 

[maniacmartin]

I picked up on that too. I looked at FCC's Delay Repay form and their Passenger's Charter and both refer to "the cost of a single ticket" (emphasis mine). On that grounds, they could argue that they choose which type of single ticket.

Also, the Charter contains this

A small number of ticket types have special restrictions
relating to compensation. These are displayed within
the terms and conditions of such tickets. This will be
explained to you at the time of purchase.

However I doubt anyone explained the Delay Repay at time of purchase of your Penalty Fare.

On that basis, I'd say that you are at least due the compensation relating to the price of the 'normal' ticket.

 

[sheff1]

I picked up on that too. I looked at FCC's Delay Repay form and their Passenger's Charter and both refer to "the cost of a single ticket" (emphasis mine). On that grounds, they could argue that they choose which type of single ticket.

However I doubt anyone explained the Delay Repay at time of purchase of your Penalty Fare.

On that basis, I'd say that you are at least due the compensation relating to the price of the 'normal' ticket.

FCC could argue that, but would such an argument stand up if challenged ?

If I understand correctly, rda has already received compensation to the value of their original ticket.

3. Given that my ticket was refunded, should my Penalty Fare also be waived as it is for a journey that was not provided?

People have already advised why the Penalty Fare is unlikely to be waived.

As yet we have no firm answer as to whether Delay Repay applies to the Penalty Fare, but an important thing to remember is that Delay Repay claims must be made within 28 days of the incident.

 

[CockneySparrow]

3. Given that my ticket was refunded, should my Penalty Fare also be waived as it is for a journey that was not provided?

Can anyone shed any light on my options?

Thanks

Seeing that you had the NSE ticket refunded I would cut my losses and cough up and get on with life

 

[bb21]

As yet we have no firm answer as to whether Delay Repay applies, but an important thing to remember is that Delay Repay claims must be made within 28 days of the incident.

I think we have hit a bit of a dead-end here. I'm not sure that this question has popped up before or that anyone would be able to give a definitive answer.

There is no harm trying, if the OP is so inclined. I wouldn't hold my breath if I were him though.

 

[sheff1]

The likelihood of a Penalty Fare and Delay Repay event must be very low. Therefore I would be surprised if the TOCs had been drafted to include this.

I think we have hit a bit of a dead-end here. I'm not sure that this question has popped up before or that anyone would be able to give a definitive answer.

There is no harm trying, if the OP is so inclined. I wouldn't hold my breath if I were him though.

Agree with both of these.

@rda If you do decide to submit a Delay Repay claim it would be very helpfuil if you could post the outcome on here. Thanks.

 

[34D]

Having now researched the Penalty Fare Rules I notice that they state that “An authorised collector must not charge a penalty fare to a person whose ticket is not valid only because of a published restriction, as described in condition 12 of the National Rail Conditions of Carriage.” Condition 12 of the National Rail Conditions of Carriage states: “Restrictions apply to the use of some tickets (including those bought with a Railcard) such as the dates, days, and times when you can use them, and the trains in which they can be used…”.

Just to add my voice that I don't believe that NRCOC 12 helps you. You've quoted the relevant words already imv.

 

[rda]

Update: I have twice asked for my Penalty Fare to be refunded for the same Delay Repay reasons as my original fare was refunded. On each occasion the reply has missed the point and essentially told me to appeal the Penalty Fare. Perhaps I am being a bit bloody minded, but I am now issuing a Small Claims Court action for the money. I will let you know what happens.

 

[34D]

Update: I have twice asked for my Penalty Fare to be refunded for the same Delay Repay reasons as my original fare was refunded. On each occasion the reply has missed the point and essentially told me to appeal the Penalty Fare. Perhaps I am being a bit bloody minded, but I am now issuing a Small Claims Court action for the money. I will let you know what happens.

Good stuff. Please keep us in the loop.

 

[rda]

I issued a claim. The necessary number of days have passed. First Capital Connect have not filed a defence and I have applied for judgement.

 

[DaveNewcastle]

It's not unusual for FCC to ignore such a small claim - when they haven't, it's appeared to me that it just had not been an economically viable use of time.

 

[rda]

So failing to defend will not open FCC up to other claims. But given that losing will still involve paperwork and expense I am surprised that they did not file a defence stating that under section xx Penalty Fares are not refundable. The fact they have not suggests that they were wrong to refuse my refund.

 

[DaveNewcastle]

They didn't attend to defend themselves when a passenger took his complaint to the Court of Appeal, which does, of course, set precedent in Case Law. That matter followed a failure to pay for travel when there was insufficient funds on his Oyster Card in Burns vs First Capital Connect 2012 [EWHC 1305 (Admin)].

 

[Gareth Marston]

I'm always coming across when auditing collect tickets bought by other people in a company for the traveler. Surely if this was someone else's error within the company then the company should reimburse the penalty fare for the OP?

I would imagine that there are a great many people travelling on the network who are reliant on Tracey in the office pressing the right buttons to have the right sort of ticket.

 

[Flamingo]

Correct me if I'm wrong, Dave, but I was under the impression that if somebody is buying something for you and accepting it, they are acting as your agent, and by allowing them to do so you are also accepting liability for any mistakes they might make on your behalf.

That was once used against me in Small Claims over some damaged goods delivered to a garage that signed for them without checking them.

 

[island]

I issued a claim. The necessary number of days have passed. First Capital Connect have not filed a defence and I have applied for judgement.

Do you intend to have the judgement enforced forthwith by bailiffs?

I'm always coming across when auditing collect tickets bought by other people in a company for the traveler. Surely if this was someone else's error within the company then the company should reimburse the penalty fare for the OP?

I would imagine that there are a great many people travelling on the network who are reliant on Tracey in the office pressing the right buttons to have the right sort of ticket.

The company certainly should, and one could make an argument that it's legally liable to, but it would be the sort of argument that would place you high on the list of people likely not to survive the next restructuring.

 

[DaveNewcastle]

Correct me if I'm wrong, Dave, but I was under the impression that if somebody is buying something for you and accepting it, they are acting as your agent, and by allowing them to do so you are also accepting liability for any mistakes they might make on your behalf.

The Railway laws are so old that there are quite a few judgements on the books from times when servants would buy their master's or mistress's tickets, and yes, the servant was acting as 'agent', and their employer remained liable for any mistakes.

Since then, the law on agency has developed and it would always be helpful to have paperwork to demonstrate that the relationship of agency had been accepted by the parties. I would be less confident where there was no evidence of an agency agreement and with the details of the liabilities defined in advance. Would you have drawn the same conclusion if a travel agent had booked a holiday on your instruction and had made a mistake (leaving you in the wrong town or with the wrong accommodation or on the wrong dates)?

But in this case, it is the passenger who is being held liable, which is exactly the same as if their employer hadn't acted as an agent in the first place. And I agree that it is the passenger who is the correct party to the dispute.

 

[Flamingo]

I suppose otherwise, reducto ad absurdum, somebody could sit if First Class from Swansea to London holding an off-peak std child Swansea to Skewen, claiming that somebody bought it for them, and nothing could be done about it as "it wasn't their mistake".

 

[Gareth Marston]

I suppose otherwise, reducto ad absurdum, somebody could sit if First Class from Swansea to London holding an off-peak std child Swansea to Skewen, claiming that somebody bought it for them, and nothing could be done about it as "it wasn't their mistake".

Very much doubt the scenario you quote but the OP is the one liable to the TOC but his employer surely should accept some responsibility and reimburse him. There are a lot of business Traveler's on the network who are reliant on others in their organisation making the right choice when booking tickets, I could go through the company but prefer to do it myself or a number of reasons.

 

[reb0118]

.........reducto ad absurdum.......

It's all Greek to me.