Season Ticket appeal - TFL Rail

[rs101]

Interesting - there is a similar parallel in the world of Council run parking enforcement.
There is a requirement to consider an informal appeal, which the council must consider and may, at it's discretion, cancel the PCN.
There have been several cases where councils have admitted a blanket policy to refuse to exercise that discretion - all of those cases have been won at appeal because the blanket policy has been shown to be incompatible with their legal requirements.

I still don't see how najaB manages to read the clause in question as stating that a TOC use deicde simply not to partake of that clause. It's very clear to me that it requires them to consider each case and, where it considers appropriate, use discretion to allow a refund.

Personally, I think this case highlights one of the major problems the average user encounters with the British rail system - a lack of consistency across TOCs in basic operating procedures.
If a user forgets/loses their season ticket, they should be able to expect consistent treatment across all the TOCs, not this farcical situation where one will refund and another won't in identical circumstances.

 

[furlong]

It's very clear to me that it requires them to consider each case and, where it considers appropriate, use discretion to allow a refund.

That's my reading of this, and I'd like to think that, this being a one-sided "take it or leave it" non-negotiable contract, a court's decision would come closer to requiring the "reasonable" use of that discretion "in good faith" that we're beginning to see in consumer matters rather than imposing the more traditional hard-nosed "not arbitrary or irrational" discretion of negotiated contracts.

 

[John Palmer]

Furlong has twice, correctly, drawn attention to the possibility that Marisol’s appeal against the penalty fare is being treated as an entirely separate matter from a claim for a refund under NCOC 35, most recently in post #53. I had, quite unjustifiably, jumped to the conclusion that a Condition 35 claim had already been made and that Marisol’s appeal related to a rejection of that claim. That may or may not be the case.

Marisol, if you have not already made a claim for refund of the penalty fare you have paid by complying exactly with the requirements for such a claim as set out in NCOC 35 (which will include presenting your season ticket at the office at which it was issued) then I recommend you to do so.

There is no time limit for presenting a Condition 35 refund claim (though undue delay in doing so might well constitute a ground for exercise of the discretion to refuse a refund). For some reason the National Rail Enquiries web site states that such a claim should be made within 28 days of travel, but NCOC 35 contains no such stipulation.

It is possible for you to exhaust any penalty fare appeal process in which you are currently engaged in which a formal claim under NCOC 35 has not been raised as an issue, and to embark on an separate complaint if and when such a Condition 35 claim has been rejected, because rejection of the Condition 35 claim would raise different considerations to those canvassed in the current appeal.

I have referred deliberately to a ‘complaint’ rather than an appeal about a rejection of a claim under NCOC 35 on the basis that Furlong is correct in saying that such a claim may lie outside TfL Rail’s appeals process. The company’s ‘Penalty Fares Appeal Policy’ makes no reference either to season tickets or to NCOC 35, which tends to support such a conclusion.

If TfL Rail reject a properly formulated claim under NCOC 35 then your appropriate course may be to make a complaint to it about that, without reference to the penalty fare appeal process. Such a complaint should draw attention to the assurance set out on the National Rail Enquiries website that you will be able to get a refund of the fare paid on the first two occasions in any 12 month period that you travel without having your season ticket with you.

Particulars of how a complaint to TfL Rail is to be dealt with are set out in the ‘TfL Contact Centre Operations Customer Promise’, a link to which can be found at https://tfl.gov.uk/help-and-contact/?cid=contact

 

[furlong]

Indeed, my theory was that GA handled condition 35 claims through its Penalty Fares appeals process whereas TfL Rail does not, and that perhaps neither TfL Rail nor the DfT spotted this gap when changing the Penalty Fares scheme. There may be other important gaps too in the Penalty Fares scheme itself, as it is now being used in different circumstances from those for which it was originally designed. An FOI request might determine what analysis was performed by the DfT before approving the change.