Season Ticket appeal - TFL Rail

[Haywain]

Not exactly a correct reading of the web site. A season ticket holder will be able to get ONE duplicate season ticket of the original, subject to one qualification: they must report the loss immediately to the ticket office where they bought the ticket. There IS an administration charge for issuing that duplicate season ticket. In certain circumstances a second duplicate season ticket will be issued, most notably that the loss is reported to the relevant authorities.

The web site is quite clear that you must first report the loss to the ticket office where the season ticket was bought. Technically the OP did not do that at a guess? Therefore all that follows technically has no application to the OPs situation.

Now of course that is morally unreasonable in the OPs circumstances and hopefully common sense would prevail, but regrettably common sense is not so common anymore.

You are confusing two different issues here. John Palmer was referring to the refund of a (day) ticket purchased in lieu of a season ticket which has been left at home, but not (permanently) lost. You are referring to the issue of a Duplicate season ticket in lieu of a season ticket which has been (permanently) lost. You are both correct.

 

[Tetchytyke]

travel on TfL Rail trains, in which case you are likely to be subject to TfL's Conditions of Carriage.

Despite TfL's very best efforts to argue otherwise, both London Overground and TfL Rail are National Rail TOCs and the National Rail conditions of carriage apply.

These say this about the OP's situation:

35. Season Ticket or photocard unavailable for inspection

If you do not show a Season Ticket, or any photocard required with a Season Ticket, when
asked by staff or agents of a Train Company, you will be treated as having joined a train
without a ticket and Condition 2 or 4 will apply.

If, subsequently, you present at the office where the Season Ticket was issued.
(a) the Season Ticket;
(b) the photocard, if required; and
(c) the additional tickets you have purchased or any Penalty Fares notices, the relevant Train Company may, at its discretion, refund any fares paid in accordance with Condition 2 or 4 less a reasonable administration charge (not exceeding £10).

No more than two such claims will be considered in any 12 month period regardless of the number of Season Tickets purchased in that time

Any refund is discretionary, but one would hope that TfL Rail will use common sense. I share Yorkie's optimism about that though...

I suspect that TfL Rail staff, like many Overground staff, seem to be forgetting (yet again) that they are part of National Rail.

 

[Panda]

Its there because that is how the system is set up - when you touch in it takes off the maximum fare and then when you touch out it reconciles the difference so the correct amount is taken off your card.

Speaking as one who eschews the use of a CPC, light only dawned when Clip pointed out that the max fare is automatically taken on the first touch in (does an exit barrier trigger such a transaction?).

Just to be 100% clear - this is only how Oyster works - contactless is completely different and you are only charged the fare at the end of the day, not at the start of your journey.

 

[MikeWh]

Just to be 100% clear - this is only how Oyster works - contactless is completely different and you are only charged the fare at the end of the day, not at the start of your journey.

While the debit on your bank/card account only takes place at the end of the day, the pending or potential charge is logged in the same way as Oyster. You won't see it on the same day journey history during the actual journey, but if you start a new journey without ending the previous one it will appear.

 

[Marisol]

Thanks everyone for your advice. I have paid the fine to stop it going any higher as suggested. I have also sent an appeal letter that mentions the points from the NRCOC above and also the guidance from the Strategic Rail 2002 paperwork about season ticket losses being treated fairly that was linked. I don't have much hope, but will keep you updated.

 

[Clip]

While the debit on your bank/card account only takes place at the end of the day, the pending or potential charge is logged in the same way as Oyster. You won't see it on the same day journey history during the actual journey, but if you start a new journey without ending the previous one it will appear.

Indeed on both points I was pointing out why the max fare is there and then got caught up in the Oyster part of it..

 

[Marisol]

Just to let you know that as per advice I paid the penalty fare and appealed, but I got back a letter today from TFL flatly turning down the appeal and saying that they will always charge a penalty fare and decline appeals in this situation, alas. It's strange to wish we still had GA, not least because their penalty fare is half the cost

 

[najaB]

Disappointing that you didn't get a refund, but not unexpected.

 

[John Palmer]

I assume that you have received a letter from the Independent Appeals Service on completion of a First Stage Appeal against the penalty fare. That letter should have provided you with details of how you may pursue a further appeal from the IAS decision. I would be interested to read the terms of the decision letter, in particular to discover exactly what the situation is in which the IAS has said it will always decline an appeal.

Since you have paid the penalty fare, you can now choose how far you are prepared to expend further time and energy in pursuing the matter through the two remaining appeal stages that are available. In terms of expense, the cost of two letters to activate each of those appeal stages seems a small price to pay for the chance of recovering the penalty fare you have paid.

 

[rs101]

If they state clearly that they will always decline appeals in this situation, how does that equate with the requirements of the National Rail CoC to use discretion in these cases?

I'd think if they have a written policy to never allow these appeals under any circumstances then that's a clear breach and definitely cause to eacalte further.

 

[furlong]

Then you must deal with this "at the office where the Season Ticket was issued" as described above.

 

[najaB]

If they state clearly that they will always decline appeals in this situation, how does that equate with the requirements of the National Rail CoC to use discretion in these cases?

I think you're reading it wrong, assuming you're referring to this:

If, subsequently, you present at the office where the Season Ticket was issued.
(a) the Season Ticket;
(b) the photocard, if required; and
(c) the additional tickets you have purchased or any Penalty Fares notices, the relevant Train Company may, at its discretion, refund any fares paid in accordance with Condition 2 or 4 less a reasonable administration charge (not exceeding £10).

There's no requirement to treat each case with discretion. The company is allowed 'discretion' to decide if they want to offer refunds or not across the board.

 

[rs101]

I think you're reading it wrong, assuming you're referring to this:There's no requirement to treat each case with discretion. The company is allowed 'discretion' to decide if they want to offer refunds or not across the board.

Think we may have to agree to disagree on this.
I read it very clearly that they may use discretion as to whether to refund any fares paid on a case by case basis.

I think you're reading it as ' they may use their discretion to decide a definite policy as to whether to refuse or not and apply it to all cases'.

 

[najaB]

Think we may have to agree to disagree on this.
I read it very clearly that they may use discretion as to whether to refund any fares paid on a case by case basis..

The key word being 'may'. It doesn't say 'is required to'.

 

[rs101]

May meaning 'should consider the possibility and allow under some circumstances which they feel appropriate'.

However TFL have stated they have a blanket policy to never exercise that discretion and so always refuse a refund.

That's my point - there is no consideration of each case. Under their stated policy, were a passenger have their season ticket stolen while on the train they would still not be entitled to a refund of any replacement ticket.

 

[najaB]

May meaning 'should consider the possibility and allow under some circumstances which they feel appropriate'.

I'm sorry, but in my dictionary if I look up 'may' it doesn't say 'See: should'.

 

[island]

If the condition said "will consider" or "will apply discretion", I would say that it is reasonable to expect the deciding body to actively consider each individual case.

But it doesn't. TfL Rail does not even have to engage its discretion. It is entitled to decide that it will not for a case or a class of cases.

 

[John Palmer]

If the interpretation of NCOC 35 apparently being advanced by najaB and island is correct, then the second limb of that condition, as cited in post #42, is redundant and as such should have no place in National Conditions of Carriage. I regard it as poor drafting to incorporate into contractual terms an ineffectual stipulation.

In any case, if I have correctly understood the position reached in the OP’s case, the question of whether TfL Rail was under any obligation to exercise its discretion does not arise here. The matter was apparently put into the hands of the Independent Appeals Service, and it is the terms of that body’s decision that I should be interested to see.

 

[najaB]

If the interpretation of NCOC 35 apparently being advanced by najaB and island is correct, then the second limb of that condition, as cited in post #42, is redundant and as such should have no place in National Conditions of Carriage. I regard it as poor drafting to incorporate into contractual terms an ineffectual stipulation.

It isn't redundant as it sets out what level of administration charge can be levied if the TOC does choose to offer refunds.

 

[Marisol]

In any case, if I have correctly understood the position reached in the OP’s case, the question of whether TfL Rail was under any obligation to exercise its discretion does not arise here. The matter was apparently put into the hands of the Independent Appeals Service, and it is the terms of that body’s decision that I should be interested to see.

Hi John. I haven't got the letter here as I'm not at home, but that was the second appeal I made. I only posted on here after the first appeal had been declined. This second decline was printed on TFL headed paper. After IAS declined the first appeal they told me to make the second appeal directly to TFL. Hope that helps to clarify.

Apparently I can make one more final appeal, but I'm not sure it's worth it. Technically I am in the wrong, and TFL seem to have a far more stringent policy that other train companies. I think I posted up thread, but the TFLRail staff at the info desk at Liverpool Street said that Greater Anglia would have been far more sympathetic alas.

 

[John Palmer]

@Marisol: I take it, then, that you’ve now received a letter from TfL’s Youth and Penalty Fares Manager on conclusion of a Second Stage Appeal. That now leaves you with a final appeal to the Independent Appeals Panel. At the expense of time taken writing a further letter plus its postage, I would have thought it worth your while to lodge such an appeal.

If you have not yet referred to it then you may find TfL’s publication ‘Penalty Fares Appeal Policy’ of some assistance. There is a link to this document at https://tfl.gov.uk/fares-and-payments/penalties-and-enforcement.

The letter from the Youth and Penalty Fares Manager will tell you where to send a letter invoking a Third Stage Appeal. If you do decide to make this final appeal you should ensure such an appeal letter reaches its destination within 14 days from (and including) the day following the date of the Youth and Penalty Fares Manager’s letter.

@najaB: A term capping the amount any administration charge is also redundant if the TOC concerned is able to circumvent any such cap simply by choosing not to offer a refund, and has elected to take that course.

 

[najaB]

@najaB: A term capping the amount any administration charge is also redundant if the TOC concerned is able to circumvent any such cap simply by choosing not to offer a refund, and has elected to take that course.

Only for that TOC.

 

[furlong]

But have you been to the ticket office where you purchased your season ticket yet, armed with a printed copy of the terms and conditions, and presented your season ticket together with the penalty fare notice? This provision may lie outside a company's appeals process. You can be in a situation where the penalty fare was correctly issued and is upheld on appeal. but should still be refunded at the ticket office in line with your season ticket terms and conditions.
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And regardless, you should take this matter directly to the DfT (or via your M.P.), as it might be indicative of an unintentional oversight it made while setting up TfL Rail that still needs to be rectified.
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The phrase "at its discretion" is typically used to avoid there being a valid legal claim in circumstances where the company has some legitimate reason to doubt your entitlement (e.g. due to suspected fraud not proved in court). A company should not be hiding a blanket policy to refuse all refunds behind that. If need be, the DfT should be invited to strengthen this wording.

 

[najaB]

The phrase "at its discretion" is typically used to avoid there being a valid legal claim in circumstances where the company has some legitimate reason to doubt your entitlement (e.g. due to suspected fraud not proved in court). A company should not be hiding a blanket policy to refuse all refunds behind that. If need be, the DfT should be invited to strengthen this wording.

The phrase 'at its discretion' is used to mean exactly what it means - the passenger has no automatic entitlement to a refund. It's entirely up to the company to decide if they will consider a refund request or not. A blanket policy is not incompatible with the term.

 

[furlong]

A blanket policy is not incompatible with the term.

If there were a blanket policy not to refund (or only to do so in rare, exceptional circumstances) then the section would be misleading and should not have been included in the contract in that form.

 

[najaB]

If there were a blanket policy not to refund (or only to do so in rare, exceptional circumstances) then the section would be misleading and should not have been included in the contract in that form.

The NRCoC is not specific to a single company. The term as written allows some companies to offer refunds and some not to - at their discretion.

 

[furlong]

The NRCoC is not specific to a single company. The term as written allows some companies to offer refunds and some not to - at their discretion.

The conditions apply equally and independently to each contract that is formed. If parts only applied to some companies the conditions would state that, just as elsewhere they say "some trains" and "some tickets". Section 35 is not qualified as only applying to "some" Season Tickets or "some" Train Companies.

 

[Marisol]

I'll send in the final appeal as I have the time and stamps. Is it worth pointing out similar companies like Southern, and in this thread http://www.railforums.co.uk/showthread.php?t=118680 LM do things differently, or is there anything else I should touch on?

I did try the ticket office, but they were spectacularly unhelpful and referred me back to IAS.

 

[najaB]

The conditions apply equally and independently to each contract that is formed. If parts only applied to some companies the conditions would state that, just as elsewhere they say "some trains" and "some tickets". Section 35 is not qualified as only applying to "some" Season Tickets or "some" Train Companies.

Let's try this again. The term applies to all companies. It gives all companies the discretion to allow (or not allow) refunds. For those companies that do offer refunds the second clause places limits on the administration fee that can be charged. For those companies that don't offer refunds, the second clause is irrelevant.

If you want to continue to argue that 'may', 'should' and 'must' are equivalent in meaning then I give up.
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Actually, before I give up. Are you saying that you don't see the difference in meaning between: "the relevant Train Company may, at its discretion, refund any fares paid..." and "the relevant Train Company may refund any fares paid..."?

 

[furlong]

It gives all companies the discretion to allow (or not allow) refunds.

As worded, all companies ordinarily offer refunds, but each refund is, individually, at the company's discretion - so if a company decides not to do so in an individual case those words try (but could still fail) to stop the passenger having any comeback. I think you may be missing the fact that contracts can also have implied terms, and "discretion" in a contract is something that the courts constrain. Discretion shouldn't be applied arbitrarily or irrationally and some argue for stronger constraints (moving towards a requirement for it be exercised in a manner that is 'reasonable'). (It's an area of law that is not straightforward and is still developing.)
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Actually, before I give up. Are you saying that you don't see the difference in meaning between: "the relevant Train Company may, at its discretion, refund any fares paid..." and "the relevant Train Company may refund any fares paid..."?

I'm suggesting that the interpretation of the phrase "at its discretion" in a contract can lead to endless legal debates and isn't as simple as you seem to wish it to be...