Penalty fare for 2 railcards when I only selected 1

[furlong]

This Penalty Fare should not have been charged because the entire journey, from Hinckley to Birmingham New St, was on a CrossCountry train service. CrossCountry do not operate a Penalty Fares scheme.

But a Penalty Fare can also be issued (on behalf of) the operator of the station rather than the operator of the train - see 4(1) with 4(3)(b) and 5(1).
(edit: but see below)

 

[Bletchleyite]

But a Penalty Fare can also be issued (on behalf of) the operator of the station rather than the operator of the train - see 4(1) with 4(3)(b) and 5(1).

Is it relevant that New St is operated by Network Rail, and the gatelines by Avanti West Coast, not WMT? Thus WMT is not "the operator of the station".

(Though it's slightly ironic that the OP is in a better position by having been PFed rather than MG11-ed...)

 

[Haywain]

Not sure I wouldn't just keep it simple and say something like:

This Penalty Fare should not have been charged because the entire journey, from Hinckley to Birmingham New St, was on a CrossCountry train service. CrossCountry do not operate a Penalty Fares scheme.

If that doesn't work you can add all the waffle back in (and/or the thing about the posters) for a second and/or third appeal.

I would add something about there being no PF notices at Hinckley station.

 

[furlong]

Is it relevant that New St is operated by Network Rail, and the gatelines by Avanti West Coast, not WMT? Thus WMT is not "the operator of the station".

So this translates into: the person at the gateline must be acting on behalf of Network Rail when asking the passenger to produce a ticket. I expect they can easily argue that that is the case - Network Rail must "own" the gateline.

The definition of "operator" is specific to paragraph 4. When you reach paragraph 5, it focusses on the "collector".

And here we are, the bit I missed earlier that closes the gap, coming from the requirements imposed on collectors:

10(5) A collector may only charge a penalty fare under regulation 5(1) to a person who is travelling by, present on or leaving a train if the collector has been authorised to charge a penalty fare by the operator of that train.

So you're right that narrows it back to the train not the station and the OP can quote 10(5) by making the appeals body require WMT to provide it with evidence that the collector had been given permission to charge Penalty Fares by XC, which we believe could not have been the case. (XC could allow WMT collectors to charge PFs from stations where WMT operates even without XC itself issuing any directly.)

 

[bdt2712]

So this translates into: the person at the gateline must be acting on behalf of Network Rail when asking the passenger to produce a ticket. I expect they can easily argue that that is the case - Network Rail must "own" the gateline.

The definition of "operator" is specific to paragraph 4. When you reach paragraph 5, it focusses on the "collector".

And here we are, the bit I missed earlier that closes the gap, coming from the requirements imposed on collectors:


So you're right that narrows it back to the train not the station and the OP can quote 10(5) by making the appeals body require WMT to provide it with evidence that the collector had been given permission to charge Penalty Fares by XC, which we believe could not have been the case.

What does this mean in simple terms haha! and how would I word that in the appeal?

 

[WesternLancer]

A bit of a simple one but PF experts are making several reasons the PF hasn’t been validly issued. I’d suggest the op lists these in bullet points or numbered list in their appeal.

Make it easy for the assessor to understand the appeal basis.

 

[Starmill]

Is it relevant that New St is operated by Network Rail, and the gatelines by Avanti West Coast, not WMT? Thus WMT is not "the operator of the station".

(Though it's slightly ironic that the OP is in a better position by having been PFed rather than MG11-ed...)

I think the real reason it's there is to cover for a situation such as making a journey from, say, Forest Hill to Brockley, as this would allow you to be charged under the Transport for London Penalty Fare scheme if you said you had no ticket, even if you'd not actually used any TfL services. I won't comment on the correctness or otherwise of it's drafting and implementation at those stations however...

== Doublepost prevention - post automatically merged: 23 Dec 2024 ==

CrossCountry do not operate a Penalty Fares scheme.

I think that the old rules were clearer on this. Now I think as long as it's physically within England and Wales (plus the minor differences which affect the England only version) a PF might be valid, you have to actually look at the rules in more detail.

 

[185]

"I've left my railcard at home on the day of travel and been charged for a new ticket, can I apply for a refund?
You must carry your Railcard with you at all times when travelling with a ticket purchased with your Railcard. This means that if you cannot produce your Railcard for the ticket inspector, you'll need to pay for a full-price ticket or be liable for a penalty fare"

West Midlands Trains (branded
@WestMidRailway
/
@lnrailway
) are apparently issuing invalid Penalty Fares for journeys on other train companies, that do not operate Penalty Fare schemes!

Well someone's right.. who is it?

 

[Haywain]

Well someone's right.. who is it?

Both. The CrossCountry website isn't saying that a Penalty Fare would be issued on thrir services, but that travelling without the railcard could render one liable to a PF on other operators' services.

 

[scrapy]

XC don’t operate a penalty fare scheme afaik? So this PFN has definitely been issued incorrectly as you’ve used XC to travel to your destination.

I agree with this, the penalty should be overturned at first appeal.

My only concern with appealing this is that normally rail companies are barred from prosecuting some once the penalty has been paid or an appeal has been heard.

In this case, are Crosscountry still barred from prosecuting as they don't operate a penalty fares scheme and didn't issue this penalty?

 

[WesternLancer]

I agree with this, the penalty should be overturned at first appeal.

My only concern with appealing this is that normally rail companies are barred from prosecuting some once the penalty has been paid or an appeal has been heard.

In this case, are Crosscountry still barred from prosecuting as they don't operate a penalty fares scheme and didn't issue this penalty?

This is pertinent point given cross country have this contracted this out to ITAL usually who seem harder to deal with and far more likely to threaten prosecution than other train companies might do given cases we see on here.

 

[furlong]

Remember that there is no such thing defined as an operator's Penalty Fares Scheme any more. They ALL got abolished. The current Penalty Fares Regulations apply equally to ALL operators - see 2(1) for the precise scope - irrespective of whether or not they choose to use the powers within to actually impose penalties on people. The restriction on proceedings in 11(3) is not limited to any particular party (for obvious reasons).

 

[Starmill]

I agree with this, the penalty should be overturned at first appeal.

My only concern with appealing this is that normally rail companies are barred from prosecuting some once the penalty has been paid or an appeal has been heard.

In this case, are Crosscountry still barred from prosecuting as they don't operate a penalty fares scheme and didn't issue this penalty?

As above and as ref #37 the old rules were clearer than the new. If Hinckley had signage compliant to the new rules, including the CrossCountry name and logo being visible (which it doesn't) that may be all that's needed for this to be permitted. CrossCountry no longer have to necessarily go through the process themselves just for the Penalty Fare to be compliant, though they may have to for another reason, you'd need to look at it more closely to see.

This is still a defence if the station is outside England and Wales.

 

[island]

Yes, the point here is that the "non-PF TOCs" CrossCountry, Avanti and LNER will not have their logos on the PF signage and that ought to be sufficient to invalidate any PFs issued to their passengers.

 

[bdt2712]

Hi everyone been a while! Hope everyone had a good new year. The appeal was rejected - what’s everyone’s opinion on whether it’s worth a second appeal and if so, what should I say?

 

[methecooldude]

Hi everyone been a while! Hope everyone had a good new year. The appeal was rejected - what’s everyone’s opinion on whether it’s worth a second appeal and if so, what should I say?

You may want to post the appeal reply if you want more advice, we need to see what they said

 

[bdt2712]

Appeal reply:

 

[Tetchytyke]

Hi everyone been a while! Hope everyone had a good new year. The appeal was rejected - what’s everyone’s opinion on whether it’s worth a second appeal and if so, what should I say?

The first and second stage appeals are controlled by the operator which issued the Penalty Fare. No matter how many times they protest they are "independent" they are not independent as the TOC pays them.

It is not uncommon for the first and second stage appeals to be rejected before, at the final stage, someone truly independent looks at it.

 

[Starmill]

I would suggest pushing hard in the next appeal on the point that there was no Penalty Fare information signposted at Hinckley when you boarded the train.

If you can get yourself or someone you trust greatly to collect you some time-stamped photos that could help you demonstrate your point. It obviously doesn't prove the situation at the time you boarded, which is what matters, but it is still persuasive.

Make sure you put it into clear terms: the Penalty Fare cannot be valid, because one condition for it to be is the CrossCountry name and logo appearing on a Penalty Fare poster at your origin station. This was not the case. Therefore the PF hasn't been issued in compliance with the rules. Therefore the appeals panel should find your appeal successful.

 

[John Palmer]

I recommend you to make a second stage appeal following rejection of your initial appeal. The second stage appeal can be on the same grounds as those of the first.

Any challenge to an appellant's assertion as to the station at which boarding took place is one in respect of which it is up to the operator to “provide evidence that reasonably demonstrates that” such assertion “is not true” (Railways (Penalty Fares) Regulations 2018 Regulation 16(4)). As there has been no challenge to your statement that you told the collector that boarding took place at Hinckley, not Nuneaton, the appeal should be determined on the basis that boarding did take place at Hinckley. That reinforces the point that the penalty fare was for an incorrect amount, having been based upon a full single fare from Nuneaton (£13.70) rather than from Hinckley (£9.70), and, being an excessive fare for the Hinckley-New Street journey, was one not charged in accordance with the Regulations' requirements. Your further grounds of appeal should draw attention to the difference between the fare from Nuneaton and the fare from Hinckley by detailing the amount of both and pointing out the overcharge.

I note that there have been a number of failures on the part of the appeals body to observe the appeals procedure requirements set out in Schedule 2 to the 2018 Regulations. In relation to this Regulation 16 appeal the appeals body has failed to state that a further appeal would be considered by a different person (Para. 8(b)) or that if such further appeal failed the appellant would have a right of appeal to a Final Appeal Panel (Para. 8(c)). Nor has the Appeal Panel given reasons for its decision as required by Para.7(c), thereby depriving the appellant of any basis for understanding why the appeal has failed.

The argument that signage at Hinckley, the boarding station, was non-compliant due to the absence from it of the Cross Country logo/name is attractive but may be ineffective due to the stipulation in Parargraph 2(2) in Schedule 1 to the Regulations: “The absence of a logo or name, as required by sub-paragraph (1)(f), on a notice only invalidates the notice in relation to the operator whose logo or name is missing.” (my emphasis). It might be fatal to any PFN issued by XC, but the PFN here was issued by a WMT collector purporting to act on behalf of a station operator rather than by XC's collector. The East Midlands Railway website lists “EM” as the only “Applicable Operator” for penalty fares purposes, so possibly the absence instead of WMT's name or logo from any PF signage at Hinckley opens the way to an appeal that the PF should not have been charged on the ground that “the requirements for the display of notices specified in regulation 8 were not satisfied” “at the station where the passenger boarded the train” (Railways (Penalty Fares) Regulations 2018 Regulation 6(2)).

 

[Haywain]

The argument that signage at Hinckley, the boarding station, was non-compliant due to the absence from it of the Cross Country logo/name is attractive

I believe the argument is that there is no PF signage at Hinckley as CrossCountry do not operate a PF scheme and they are the only operator serving the station.

 

[John Palmer]

I believe the argument is that there is no PF signage at Hinckley as CrossCountry do not operate a PF scheme and they are the only operator serving the station.

Clearly, if there's no PF signage at all at Hinckley then the PF should never have been issued, and that should be conclusive so far as any appeal is concerned, provided the appeal body accepts that Hinckley was indeed the boarding station. The information put online by EMR is somewhat ambiguous in this respect, referring as it does on one page to "EM" being the "applicable operator" for PF purposes, whatever that may mean. OTOH, EMR's penalty fare policy document (linked upthread) clearly indicates that Hinckley is mmanaged by EMR but is not an EMR penalty fares station.

 

[Haywain]

Clearly, if there's no PF signage at all at Hinckley then the PF should never have been issued, and that should be conclusive so far as any appeal is concerned, provided the appeal body accepts that Hinckley was indeed the boarding station. The information put online by EMR is somewhat ambiguous in this respect, referring as it does on one page to "EM" being the "applicable operator" for PF purposes, whatever that may mean. OTOH, EMR's penalty fare policy document (linked upthread) clearly indicates that Hinckley is mmanaged by EMR but is not an EMR penalty fares station.

CrossCountry do not manage any stations so those few where they are the sole operator are managed by other TOCs. EMR are the managing TOC for a number of such stations between Nuneaton and Peterborough.

 

[furlong]

As the explanatory notes reinforce:

Part 3 of the Regulations, together with Schedule 2, provides that an operator may only charge penalty fares if they have in place an appeals process that complies with these Regulations
(regulation 14). Regulation 15 sets out the requirements that appeal panels must satisfy and regulations 16 to 18, together with Schedule 2, set out the processes and procedures that must be followed.

by the appeals panel's failure to adhere to the appeals process on multiple grounds, the operator does not currently appear to be in a position to charge any penalty fares. Arguably it might end up having to refund any issued during a period where the operator was not compliant. Perhaps your MP or the press might wish to take this up with the DfT and Transport Focus? Coming on the back of all the prosecutions determined to be nullities this really doesn't look good.

== Doublepost prevention - post automatically merged: 14 Jan 2025 ==

Taking a step back, it looks really bad if the appeals system - which claims to be "independent" - is attempting to close ranks and enforce penalties in the face of multiple blatant issuing errors for a journey not covered by Penalty Fares! Anyone with basic familiarity with the system would think this one "looks wrong" even if it takes some effort to work out all the precise reasons why in terms of the regulations.

 

[bdt2712]

2nd appeal successful! Honestly really appreciate everyone’s help with this, you guys have been great and are the reason I’ve been successful with this. So big thank you

 

[1D54]

Been following this thread and really pleased you got the result you wanted and more importantly deserved. Justice has been done.

 

[Hadders]

Excellent news, thanks for letting us know.

 

[furlong]

2nd appeal successful! Honestly really appreciate everyone’s help with this, you guys have been great and are the reason I’ve been successful with this. So big thank you

Now, please would you consider making a submission to the ORR's review at https://www.orr.gov.uk/search-consu...w-train-operators-revenue-protection-policies ?
E.g. answer the questions in the survey then send them the correspondence highlighting the serious shortcomings of both the way it was issued for a journey not subject to penalty fares, the way the first appeal was mishandled, and the way even the second successful appeal also failed to provide proper reasons beyond merely acknowledging and reviewing!