Destinations for penalty fares

[Fawkes Cat]

From another thread (which is still live and I don't want to derail - hence this new thread):

The penalty fare charged to a person travelling by or present on a train authorises a person to travel to—

(a)a station in England at which the train is due to make a scheduled call that they may specify, if the collector considers that this is reasonable in all the circumstances; or

(b)otherwise, the next station at which the train is due to make a scheduled call

We seem to be interpreting this as meaning that (a) only applies when the passenger says 'I want a penalty fare to X': otherwise (b) applies and the penalty fare is to the next scheduled call.

But are we interpreting 'that they may specify' correctly? To my eyes, if the intention is that the passenger can say 'make it out to X' then the regulation would say 'that they specify' - 'may' would be unnecessary. And 'may' is not a synonym for 'must' - the passenger has the choice not to do this, but by not doing it, they don't make the previous part of the sentence ('a station in England at which the train is due to make a scheduled call') go away. So it seems to me that if the passenger doesn't specify that they want the ticket to be to X, then item (a) reads

(a)a station in England at which the train is due to make a scheduled call, if the collector considers that this is reasonable in all the circumstances

This interpretation of the regulation would mean that on a train running from A to B to C that a penalty fare issued between A and B would not automatically be wrong if the officer issued the pf to C without the customer asking for it.

Any thoughts?

 

[Egg Centric]

My interpretation is that the "may" is qualified by " if the collector considers that this is reasonable in all the circumstances".

In other words the right by the passenger to specify a destination is not absolute but that the RPI/guard has to consider it reasonable.

I think if it was your interpretation then it would just be written like that.

 

[Fawkes Cat]

I think if it was your interpretation then it would just be written like that.

Thanks for this. I've taken a second look: to me, it seems that it is written like that. So two questions:

- how would you expect it to be written if my interpretation is correct? (never rule out the possibility that I'm failing to see something obvious and need that spelling out to me...)
- if my interpretation is wrong, what does the word 'may' add to the regulation?

 

[AlterEgo]

I agree with @Fawkes Cat for the reasoning they provide. It's up to the passenger to specify a destination. They don't need to be asked. It's entirely reasonable to issue it to the place where the customer will alight the train absent any specification from the passenger.

 

[The exile]

This is presumably to cover a situation like this:
Passenger is PF’d between A and B while attempting to travel to Z. Passenger has valid railcard but no ticket. Cheapest option for passenger is PF to B, passenger gets off and purchases discounted ticket from B to Z. However, passenger specifically asks to be PFd to Z (although that will cost them £50 more). OK to issue. Not OK to issue PF to Z just because passenger has said that’s where they are going (which is a different thing from specifying that that’s where they want to be PFd to.)

 

[soil]

Thanks for this. I've taken a second look: to me, it seems that it is written like that. So two questions:

- how would you expect it to be written if my interpretation is correct? (never rule out the possibility that I'm failing to see something obvious and need that spelling out to me...)
- if my interpretation is wrong, what does the word 'may' add to the regulation?

This is just drafting technique.

The clause needs to contain a modal verb, and this modal must be "may" or "must" depending on whether this is a choice or mandatory.

It would be no good at all to leave it out, because then you introduce ambiguity "a station at which the train is due to make a scheduled call that they specify" suggests that the passenger MUST choose.

So you would be left with:

a) passenger MUST specify a station, which the inspector will reject or accept;
b) if rejected, the inspector has no choice but to issue it to the next stop.

This is obviously not what is wanted, and what we have instead is.

a) the passenger has the option to specify a station, which the inspector can reject or accept
b) if the passenger does not specify one, or if this is rejected, the inspector has no choice but to issue it to the next stop.

 

[Starmill]

It's only logical that the default position is that the destination is the next stop. This provides that the customer may choose to leave the train there and continue their journey by other means, or using some other ticket.

 

[Egg Centric]

Thanks for this. I've taken a second look: to me, it seems that it is written like that. So two questions:

- how would you expect it to be written if my interpretation is correct? (never rule out the possibility that I'm failing to see something obvious and need that spelling out to me...)
- if my interpretation is wrong, what does the word 'may' add to the regulation?

Sorry? I mean that they could have just written it in how you are saying it reads.

Imo the "may" is about the customer having the right to do it if the collector considers it reasonable.

 

[soil]

It's entirely reasonable to issue it to the place where the customer will alight the train absent any specification from the passenger.

Not necessarily.

E.g, passenger is PFed while travelling London - Leicester on a weekend using wrong Advance ticket, on a train making its first stop at Kettering

PF to Kettering is £50 + £38.50
PF to Leicester £50 + £78.50

It would not be particularly reasonable to slap the passenger with a £128.50 PF when they could possibly get off the train at Kettering and board their booked train, or buy the £17.40 fare from Kettering to Leicester separately.

The government said while/since introducing this, that

https://questions-statements.parliament.uk/written-questions/detail/2024-05-16/HL4741/

To reduce fare evasion, in January 2023 we increased the value of the penalty fare to £100, plus the price of the single fare to the intended destination

https://publications.parliament.uk/pa/ld5803/ldselect/ldsecleg/93/9304.htm

This doesn't change the meaning of the legislation, which does say "specify", however it might provide some assistance in interpreting what is meant by "that the passenger may specify".

In my view, given that Regulation 5 is about the circumstances in which a penalty fare can be issued, and how it should be issued, the correct procedure would be to ask:

E.g., "I'm going to issue you with a Penalty Fare. This is a ticket costing £100 + the full fare, reduced by £50 if paid within 21 days. Would you like me to issue your PF to Leicester or Kettering?"

Clearly if the inspector does not ask, then the passenger can dispute their liability.

We might ask what the purpose of the 2022 amendments were, and it appears that these were

1) to increase the penalty from "£20 or double the single fare to the next station, whichever is greater" to something less confusing and also to provide a greater deterrent. £100/£50 is obviously more of a deterrent than £20, so that job is done
2) to make the PF system more efficient - if you're travelling from Leeds to Wakefield, a ~£5 fare, it makes little sense to instead issue a £4 PF to Woodlesford, when both passenger and railway would be better off with a ticket through to Wakefield.

In the context of both points then I don't think additional "punishment" was intended simply because the passenger might have been planning to head to a subsequent stop, for which the walkup fare might already be considered a "penalty". (London - Leicester anytime single is £113.50)

Since the legislation says:

1) that the passenger specifies and
2) that the RPI agrees is reasonable

then I don't see any reason to depart from that by having the RPI simply issue a PF to Leicester without asking the passenger.

 

[Fawkes Cat]

I'm sorry, but I don't quite follow your logic.

Not necessarily.

E.g, passenger is PFed while travelling London - Leicester on a weekend using wrong Advance ticket, on a train making its first stop at Kettering

PF to Kettering is £50 + £38.50
PF to Leicester £50 + £78.50

It would not be particularly reasonable to slap the passenger with a £128.50 PF when they could possibly get off the train at Kettering and board their booked train, or buy the £17.40 fare from Kettering to Leicester separately.

Surely since in this example the passenger is 'travelling London - Leicester' it's entirely reasonable for them to be issued a ticket (in the form of a penalty fare) that will allow them to complete their journey rather than on something that they might do. Does the railway officer know if the passenger's priority is to save money (by stepping back to the next Kettering to Leicester service) or to get to Leicester on time?

The government said while/since introducing this, that

https://questions-statements.parliament.uk/written-questions/detail/2024-05-16/HL4741/
To reduce fare evasion, in January 2023 we increased the value of the penalty fare to £100, plus the price of the single fare to the intended destination

https://publications.parliament.uk/pa/ld5803/ldselect/ldsecleg/93/9304.htm
This doesn't change the meaning of the legislation, which does say "specify", however it might provide some assistance in interpreting what is meant by "that the passenger may specify".

Indeed, what the government said isn't going to override the meaning of the legislation, but in this case, as the government has said 'we increased the value of the penalty fare to £100, plus the price of the single fare to the intended destination' (my bold) then to my (non-lawyerly) eyes this suggests that the intention of the legislation was that the penalty fare would be to the point where the passenger expected to get off the train (Leicester rather than Kettering in your above example)

We might ask what the purpose of the 2022 amendments were, and it appears that these were

1) to increase the penalty from "£20 or double the single fare to the next station, whichever is greater" to something less confusing and also to provide a greater deterrent. £100/£50 is obviously more of a deterrent than £20, so that job is done
2) to make the PF system more efficient - if you're travelling from Leeds to Wakefield, a ~£5 fare, it makes little sense to instead issue a £4 PF to Woodlesford, when both passenger and railway would be better off with a ticket through to Wakefield.

Or we could look at what the government said was the point in your earlier quote - see above.

In the context of both points then I don't think additional "punishment" was intended simply because the passenger might have been planning to head to a subsequent stop, for which the walkup fare might already be considered a "penalty". (London - Leicester anytime single is £113.50)

Do we consider paying the walkup fare to be a penalty? In that case, there's an awful lot of commuters being punished every day that they use the train.

Since the legislation says:

1) that the passenger specifies and
2) that the RPI agrees is reasonable

then I don't see any reason to depart from that by having the RPI simply issue a PF to Leicester without asking the passenger.

But on my analysis, that's not a full statement of what what the legislation says - it allows for the scenario where the customer is clearly going to Leicester and shouldn't be compelled to enjoy the delights of Kettering.

It would be nice if we could show that the legislation was more supportive of passengers than the railway think it is. But in practical terms of giving advice, we need to be clear as to what the law is, and give our advice based on that - not on what we think the law should be.

 

[soil]

I'm sorry, but I don't quite follow your logic.


Surely since in this example the passenger is 'travelling London - Leicester' it's entirely reasonable for them to be issued a ticket (in the form of a penalty fare) that will allow them to complete their journey rather than on something that they might do. Does the railway officer know if the passenger's priority is to save money (by stepping back to the next Kettering to Leicester service) or to get to Leicester on time?

What's "reasonable" is irrelevant - the PF must be issued in accordance with the PFR. The PFR themself might make reference to "reasonableness", but there is no inherent test of reasonableness that entitles them to simply ignore the actual law - PFR.

Indeed, what the government said isn't going to override the meaning of the legislation, but in this case, as the government has said 'we increased the value of the penalty fare to £100, plus the price of the single fare to the intended destination' (my bold) then to my (non-lawyerly) eyes this suggests that the intention of the legislation was that the penalty fare would be to the point where the passenger expected to get off the train (Leicester rather than Kettering in your above example)


Or we could look at what the government said was the point in your earlier quote - see above.

We can't simply ignore what the legislation actually says in favour of what the government says.

You can read here if you wish - https://supremecourt.uk/uploads/speech_lord_sales_240919_1e4f3f8d1f.pdf

We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.

So we definitely cannot simply ignore the actual words of the legislation and say "well they intended to go to Leicester, because they'd previously purchased a £20 Advance, so they definitely still want to go there now it costs £138".

And again, "It has always been said to be important to consider the "mischief" B which the Act was apparently intended to remedy."

As I observe, the "mischief" here appears to have been "too cheap" PFs, inconsistent, unfair or confusing rules (the old penalty was effectively the greater of (£20-fare) or (fare), whereas now it is simply £50), and inflexibility (you need to get off at the next stop)

In stating "that the passenger may specify" it does appear that the passenger is the one given the flexibility.

It doesn't appear at all that Parliament intended for the passenger's choice to get off at the next stop (or in practice buy a new ticket online) to be taken away from him especially given that this reintroduces much of the inconsistency/inflexibility that the PFR amendments seem intended to have done away with.

Nor is it all logical that the passenger should be expected to say "actually I'm going to get off at the next stop instead" when faced with an RPI trying to charge him £££££ in a PF. The passenger has no idea what is going on, whether he is entitled to ask for this - it can only make sense that the RPI must ask.

Do we consider paying the walkup fare to be a penalty? In that case, there's an awful lot of commuters being punished every day that they use the train.

Clearly passengers who choose to buy a ticket for £138 in advance are not being penalised, because they chose "London - Leicester", saw the price, then clicked "Purchase".

However, passengers who are simply charged £188 to their final stop because they are told they made a mistake, where there in fact exists the option to pay, say, £100, to the next stop, are not in the same position of free choice and negotiating power.

But on my analysis, that's not a full statement of what what the legislation says - it allows for the scenario where the customer is clearly going to Leicester and shouldn't be compelled to enjoy the delights of Kettering.

It would be nice if we could show that the legislation was more supportive of passengers than the railway think it is. But in practical terms of giving advice, we need to be clear as to what the law is, and give our advice based on that - not on what we think the law should be.

The full statement of what the law says is

"

(2) Where a collector charges a penalty fare, the collector must provide that person with the following information in writing at the time the penalty fare is charged—

(a) a statement that the person is being charged a penalty fare;
(b) an explanation of why the person is being charged a penalty fare;
(e) the penalty fare number;
(f) the amount of the penalty fare;

(2A)
the information provided by the collector must also include—
(b) where the penalty fare authorises a person to travel, the station to which the penalty fare authorises the person to travel.

(5A) the penalty fare charged to a person travelling by or present on a train authorises a person to travel to
(a) a station in England at which the train is due to make a scheduled call that they may specify, if the collector considers that this is reasonable in all the circumstances; or
(b) otherwise, the next station at which the train is due to make a scheduled call.

There is no other law than this one, and anything stated elsewhere is not law. It might help us to understand what is meant by "specify" to look elsewhere, but we can't just ignore the word "specify", and say that the law says "intended station", because that is not correct, and isn't the law. It's the station the passenger "may specify".

Sometimes the passenger has a ticket, sometimes not.

We might decide that in the context of the above that simply by showing their ticket to Leicester that they have "specified" that.

However that doesn't seem to me to be true. If I board a train at Coventry and shortly after present an invalid Coventry - Chester ticket, then it wouldn't be lawful to issue the PF to Chester, since it's not a stop on my train, and I could potentially be travelling on the current train to one of several different stops, and it clearly would not be correct for the RPI to just issue it to Wolverhampton without asking me.

Similarly, I usually buy my ticket to a later stop, because it's the same price. My intended destination is B, but my ticket says C.

In addition, a passenger may well be intending to break their journey, so unless the ticket is "no break of journey" the fact that a ticket says "Edinburgh" on it, doesn't mean I had or have any intention of travelling there on the current train.

It isn't hard for the RPI to ask the passenger. It is not the passenger's fault if the RPI fails to do so.

 

[Starmill]

the customer is clearly going to Leicester and shouldn't be compelled to enjoy the delights of Kettering.

There's actually nothing to suggest they'd be compelled to leave the train though. That's an option they may find to their advantage. Others would be to ask to pay for a new ticket at the correct fare for Kettering to Leicester from the inspector, or arrange for this themselves if they wished.

Either way, it's only logical to interpret the rule in the way that the default option is the next station stop at the issue time.

 

[enyoueffsea]

It isn't hard for the RPI to ask the passenger. It is not the passenger's fault if the RPI fails to do so.

But does the legislation state the RPI must (or even should) ask the passenger?

The onus is on the passenger to make a specification, it does not at any point state the RPI should offer them the opportunity to do so.

The RPI only needs to state they are giving a PF, the reason why and where it authorises the passenger to travel to.

 

[Fawkes Cat]

What's "reasonable" is irrelevant - the PF must be issued in accordance with the PFR. The PFR themself might make reference to "reasonableness", but there is no inherent test of reasonableness that entitles them to simply ignore the actual law - PFR.

And yet, it is a concept you introduced to the discussion:

It would not be particularly reasonable to slap the passenger with a £128.50 PF when they could possibly get off the train at Kettering and board their booked train, or buy the £17.40 fare from Kettering to Leicester separately.

*****

And again, "It has always been said to be important to consider the "mischief" B which the Act was apparently intended to remedy."

As I observe, the "mischief" here appears to have been "too cheap" PFs, inconsistent, unfair or confusing rules (the old penalty was effectively the greater of (£20-fare) or (fare), whereas now it is simply £50), and inflexibility (you need to get off at the next stop)

No. The mischief is people not paying their train fares.

 

[Starmill]

No. The mischief is people not paying their train fares.

Mischief is concerned with how to make correct interpretations of a statutory provision.

 

[soil]

And yet, it is a concept you introduced to the discussion:

No, I manifestly did not.

AlterEgo wrote

"
It's entirely reasonable to issue it to the place where the customer will alight the train absent any specification from the passenger.
"

I was replying to the suggestion that it is reasonable to simply charge to the further station without asking.

The question of what is reasonable is a different one from what is legal, although in general it will never be reasonable to charge something that is not legal.

*****


No. The mischief is people not paying their train fares.

No, that's not correct, as you would see if you read the link I provided.

It has always been said to be important to consider the "mischief" B which the Act was apparently intended to remedy. The word "mischief" is traditional. I would expand it in this way. In addition to reading the Act you look at the facts presumed to be known to Parliament when the Bill which became the Act in question was before it, and you consider whether there is disclosed some unsatisfactory state of affairs which Parliament can properly be supposed to have intended to remedy by the Act.
The PF Amendment Regulations 2022 amend the 2018 regulations to remedy the "mischief".

Mischief means the 'defect' in the existing law (see for example https://en.wikipedia.org/wiki/Mischief_rule). It's not referring to "mischief" in the narrow sense of wrongdoing.

It's saying "what was wrong with the existing law, and what was Parliament trying to fix in the process". As I said these were inconsistent penalties, lack of flexibility for the passenger, and insufficient deterrent effect from the low PF.

 

[AlterEgo]

It's only logical that the default position is that the destination is the next stop. This provides that the customer may choose to leave the train there and continue their journey by other means, or using some other ticket.

Why? That isn't the case for many other ticketing matters. You can leave but your liability doesn't cease there, if you are off route or break journey when not entitled you get excessed for the full value.

 

[soil]

But does the legislation state the RPI must (or even should) ask the passenger?

The onus is on the passenger to make a specification, it does not at any point state the RPI should offer them the opportunity to do so.

The RPI only needs to state they are giving a PF, the reason why and where it authorises the passenger to travel to.

The legislation definitely doesn't suggest that the passenger must ask the passenger, no.

So if they simply issue the PF to the next stop without asking, that appears to be ok.

However, what the RPI cannot do is issue to a stop (other than the next one) that has not been specified by the passenger.

As I have mentioned there is room perhaps to debate how "specify" is to be interpreted, but as I noted given that the passenger might be stopping short, changing at one of several stations, breaking their journey, etc., it doesn't seem that simply looking at their original ticket could qualify as "specifying".

 

[Starmill]

Why? That isn't the case for many other ticketing matters. You can leave but your liability doesn't cease there, if you are off route or break journey when not entitled you get excessed for the full value.

Because that's the only way to read the law as it's written that isn't irrational.

 

[Fawkes Cat]

Because that's the only way to read the law as it's written that isn't irrational.

Sorry for being dense, but what's irrational about my reading (which I think is the same as AlterEgo's)?

If it comes down to not liking the conclusion of my reading, that's not irrational - that's just being with the Beadle in Oliver Twist and thinking that the law is an ass.

 

[Starmill]

Sorry for being dense, but what's irrational about my reading (which I think is the same as AlterEgo's)?

If it comes down to not liking the conclusion of my reading, that's not irrational - that's just being with the Beadle in Oliver Twist and thinking that the law is an ass.

Hasn't it already been adequately addressed in the long exchanges above?

The word "may" is there because it has to be there as part of the "if the collector considers this reasonable in all the circumstances" subclause.

If the inspector makes out the Penalty Fare to the next station without discussion, this is covered by the rule. If the inspector and the passenger agree to vary that, this is covered by the rule. If there isn't any discussion whatsoever about where the passenger is going to leave the train, the Penalty Fare can't be valid if it's made out to a station other than the next one, because the inspector doesn't know where the person was going to get off. The wording used in the drafting excludes an assumption of where the person is going to get off.

I really think it's daft that you've brought Beadle from Oliver Twist into the discussion by the way. There's absolutely nothing whatsoever here to suggest anyone's doing anything like that. Also, there is absolutely nothing to suggest that there's some kind of undue burden in the rule being to apply the next station as the destination by default, and as far as I am aware, nearly all Penalty Fares are issued in that way already, if they're on train. Arguably it actually makes it easier to issue valid PFs in this way than it was under the old rules, because now, you can't get it wrong if you use the next station. That doesn't mean that the safeguards Parliament set lose their meaning, i.e. consumers can't be charged arbitrary amounts in the Penalty Fare, they can only be charged for what has actually been used, plus the £100/£50 element.

 

[AlterEgo]

If the inspector makes out the Penalty Fare to the next station without discussion, this is covered by the rule. If the inspector and the passenger agree to vary that, this is covered by the rule. If there isn't any discussion whatsoever about where the passenger is going to leave the train, the Penalty Fare can't be valid if it's made out to a station other than the next one, because the inspector doesn't know where the person was going to get off. The wording used in the drafting excludes an assumption of where the person is going to get off.

Thanks. This is a satisfactory explanation and I've changed my position to agree with you and @soil on this. The regulations do indeed say that!

 

[island]

I also concur with soil and Starmill.

 

[enyoueffsea]

The legislation definitely doesn't suggest that the passenger must ask the passenger, no.

So if they simply issue the PF to the next stop without asking, that appears to be ok.

However, what the RPI cannot do is issue to a stop (other than the next one) that has not been specified by the passenger.

As I have mentioned there is room perhaps to debate how "specify" is to be interpreted, but as I noted given that the passenger might be stopping short, changing at one of several stations, breaking their journey, etc., it doesn't seem that simply looking at their original ticket could qualify as "specifying".

I think my point is the latter on how specify is interpreted.

In my view, given that Regulation 5 is about the circumstances in which a penalty fare can be issued, and how it should be issued, the correct procedure would be to ask:

E.g., "I'm going to issue you with a Penalty Fare. This is a ticket costing £100 + the full fare, reduced by £50 if paid within 21 days. Would you like me to issue your PF to Leicester or Kettering?"

Clearly if the inspector does not ask, then the passenger can dispute their liability.

I agree it would be good act of service for the RPI to go through the options the passenger has available to them, but I do not think it is necessary.

Therefore if the passenger states they were travelling to Leicester, I do not see how this would invalidate a PF if the RPI puts Leicester as the destination rather than Kettering as the next stop.

The passenger has specified their destination to be Leicester, the RPI considers it reasonable to PF them to there.

 

[fandroid]

This is presumably to cover a situation like this:
Passenger is PF’d between A and B while attempting to travel to Z. Passenger has valid railcard but no ticket. Cheapest option for passenger is PF to B, passenger gets off and purchases discounted ticket from B to Z. However, passenger specifically asks to be PFd to Z (although that will cost them £50 more). OK to issue. Not OK to issue PF to Z just because passenger has said that’s where they are going (which is a different thing from specifying that that’s where they want to be PFd to.)

If there's time before the next stop, then it's perfectly possible for the passenger to regulate their position and minimise their costs by buying a new Railcard online and applying it to a discounted fare for the journey between next stop and their destination.

Everyone needs to recognise the new reality of online tickets purchase and smartphones. The inspector should not be allowed to make any otherwise assumptions and to effectively increase the penalty by not mentioning the passenger's options.

The same goes for the possibility of buying an Advance fare for the remainder of the journey.