Up to a point I agree with
@furlong's analysis, but it is at this point that I part company with it:
It is basically imperative that the operator throws resources at the appeals process so that it meets the 21 day limit in EVERY case - or else it risks being required to pay back a lot of money to offenders!
That seems to involve a proposition that an inability of the appeals process to determine any individual appeal within the prescribed time is, in effect, fatal to the legitimacy of the appeal process as a whole, and that's a conclusion I'm reluctant to accept because it would impose upon the operator an obligation that seems to go beyond what is required by Regulation 14(5):
'An operator “satisfies the appeals requirements” for the purposes of this regulation if the operator has—
(a) made arrangements for—
(i) an Appeal Panel to consider any appeal under regulations 16 and 17 against a penalty fare charged on its behalf, and
(ii) a Final Appeal Panel to consider any appeal under regulation 18 against a penalty fare charged on its behalf; and
(b) established and maintained a financial arrangement with the relevant Appeal Panel and the relevant Final Appeal Panel to ensure that all of the costs associated with appeals under regulations 16, 17 and 18 against penalty fares charged on behalf of the operator are paid for by the operator.'
I read this as requiring an operator to do no more than making arrangements for appeal panels meeting the requirements of Regulation 15 to consider appeals and putting and keeping in place the financial arrangements that will enable such panels to do so. I see nothing in the definition of what “
satisfies the appeals requirements” that imposes on the operator an obligation to ensure that the appeal machinery it puts in place will decide every appeal received within the prescribed time limit, though I recognise that there might be scope for argument as to whether the words “
consider any appeal under regulations 16 and 17” (or
“under regulation 18”, as the case may be) in Regulation 14(5) import such an obligation. The fact that the Regulations make specific provision for the consequences of failure to observe that time limit in the individual case suggests to me that no such obligation was intended.
I don't, however, have any difficulty in recognising the possibility that circumstances may arise in which an operator retrospectively becomes aware of circumstances that render the appeal machinery it has put in place non-compliant with the Regulation 14(5) requirements.
Suppose, for example, that a majority shareholding in the company that is providing Operator A's appeal arrangements is acquired by a company that is an affiliate of an operator (Note:
any operator – not necessarily Operator A). In such a case that provider may well cease to be “
managerially and organisationally independent of any operator and any affiliate of an operator” (Regulations 15(1) and (2)) and, having thus become incapable of providing appeal panels that meet the requirements of Regulation 15, becomes ineligible to form part of the arrangements for considering appeals that meet the requirements of Regulation 14(5). In turn that means that the Operator A has ceased to “
satisfy the appeals requirements” and has come within the scope of Regulation 14(4), though it may not become aware of that fact until some time after the acquisition of the relevant controlling shareholding. In those circumstances it is certainly possible that there will be people who have received penalty fares on a date falling after that on which Regulation 14(4) became applicable to Operator A, which then becomes subject to the positive obligations set out in Regulations 14(3) and (3A) to take the initiative in making appropriate refunds to such recipients within 10 days, regardless of whether such refunds have been claimed.
All of this is probably fairly academic for the OP, but what will be of relevance is the consequence, in the individual case, of a lawfully constituted appeal panel failing to decide an appeal within the time allowed, i.e. “
before the end of the period of 21 days beginning with the day on which the appeal is received” (Schedule 2 Paragraph 6)). In the majority of cases the consequences of that failure will be as laid down in Regulation 16(11A):
“
If an appeal is against a penalty fare calculated in accordance with regulation 9(1A) or (4A), where the relevant Appeal Panel—
(a)notifies the operator that an appeal has been allowed; or
(b)fails to adhere to the time period specified in paragraph 6 of schedule 2, the appellant is not liable to pay the penalty fare in question and is only liable to pay the full single fare applicable for their journey.” (my emphasis)
The OP submitted an appeal on 22 September, but the more important question is when it was
received by the appeal panel. If it was submitted electronically, then receipt is likely also to have occurred on 22 September (a point that can be checked by the OP on Penalty Services' online record of the appeal) – at which date the time for determining the appeal began to count down, and is probably now nearly at an end.
