Forthcoming changes to National Rail Conditions of Travel

[johncrossley]

If the industry claims the change is purely to prevent fraud, they can't deny rights to people who have changed when they buy tickets because of new rules. It wouldn't get tested in court because the industry would always give up before it gets that far.

 

[35B]

If the industry claims the change is purely to prevent fraud, they can't deny rights to people who have changed when they buy tickets because of new rules. It wouldn't get tested in court because the industry would always give up before it gets that far.

That logic doesn't work. You take one thing (intent) and overlay that on something else (the specific terms and conditions that apply to a ticket). They might be reasonable (and I'd hope they would), but that doesn't mean that you'd benefit from those rights.

More generally, there's a difference between how things should be, and how they are. If seeking to claim contractual rights, it's very dangerous to act as though what should be true is true as the costs can mount up.

For the avoidance of doubt, I share the general contempt for the quality of thinking behind these changes.

 

[Tetchytyke]

Arguably you don't need a ticket at all to have rights. You can't seriously say that KeyGo, TfL contactless and similar schemes mean you don't have rights before you tap in? That would be laughably unfair and surely a court would be similarly sympathetic.

A contract (generally) needs three things to be binding: offer, acceptance, and consideration.

With PAYG, those things don't apply until you tap in. So no, you don't have any contractual rights until you tap in. This is no different to the old days where you bought your ticket just before travel from the station booking office- until you'd bought the ticket, you had no contractual rights.

This was, by all accounts, driven by senior figures, who wanted to implement this even more quickly and even more recklessly than they ended up doing; it was only because the retailers literally couldn't implement the software updates required to make it work on the original timeline that bought us an extra few months. Time which they might have spent equality proofing their plans before announcing them, but no.

Turns out that when you use a sledgehammer to crack a walnut, there's a lot of collateral damage. Who knew?

Otherwise, I'll just repeat what I said in March:

The railways have supposedly invested in AI and other monitoring to detect fraudulent and suspicious claims. Surely the person who makes three refund claims a week would be exactly the sort of thing the railway easily detect using this new fancy software?

 

[Kilopylae]

In case you need to cancel on the day.


Arguably you don't need a ticket at all to have rights. You can't seriously say that KeyGo, TfL contactless and similar schemes mean you don't have rights before you tap in? That would be laughably unfair and surely a court would be similarly sympathetic.

I agree with others that you don't have any contractual rights before you tap in. You're no different from anybody else that the railway hasn't agreed to do business with.

The railway has to take some kind of "action" to do business with you and accept the contract - sell a ticket, validate a card, etc. I don't think you can ever have contractual rights without first "interacting" with the railway to give it the opportunity to enter into the contract with you.

 

[Haywain]

I agree with others that you don't have any contractual rights before you tap in. You're no different from anybody else that the railway hasn't agreed to do business with.

The railway has to take some kind of "action" to do business with you and accept the contract - sell a ticket, validate a card, etc. I don't think you can ever have contractual rights without first "interacting" with the railway to give it the opportunity to enter into the contract with you.

As a KeyGo user I am aware that there may be limits to my contractual rights when using KeyGo. However, I believe a contract does exist as I have made an agreement with GTR that they will allow me to travel using KeyGo (an authority that they have added to the card) and will charge me after the event because I have provided an ongoing authority to calculate and take the necessary fares from my bank account.

 

[redreni]

The more I think about this the more I suspect the industry's professed willingness to make exceptions to its refund policy for disabled people doesn't fully cure the fundamentally discriminatory nature of the rule itself. A disabled person who might need to cancel on the day of travel and get a refund previously had a contractual right to do that and now they don't. So they have been discriminated against as the railway has made it harder for them to use. If they don't travel by train for that reason, the discrimination is very real, it's just much harder to show a loss than it would be for somebody who had elected still to travel by rail, applied for a refund and been refused. And in that case the railway would certainly settle any claim before allowing a court to consider the discrimination point.

 

[Watershed]

As a KeyGo user I am aware that there may be limits to my contractual rights when using KeyGo. However, I believe a contract does exist as I have made an agreement with GTR that they will allow me to travel using KeyGo (an authority that they have added to the card) and will charge me after the event because I have provided an ongoing authority to calculate and take the necessary fares from my bank account.

I agree, and the same is true of Oyster I would suggest, whereby the action of buying a card and topping it up means you have a contract. Now the TOCs may try to argue it's only with TfL until and unless you use the card on National Rail services, but if you consider a station like Stratford where a multitude of Underground, DLR and National Rail services are behind the same barrier, I don't see how that argument can really fly.

Would the argument be that you have a contract with the TOCs by tapping in even if you end up boarding an Underground service for example? Or is the contract only formed when you board the train? It's a non-starter as I see it. The contract is formed when you buy the card and/or top it up.

Now for contactless PAYG I can see more of an argument that you haven't entered into a contract until you tap in.

 

[Benjwri]

I’m not sure I agree with this argument. The TOC/TfL is not being given an opportunity to agree to the contract, as when you top up you are not specifying a time or destination. Just having an Oyster card doesn’t entitle you to a contract whenever, wherever, and they are also within their rights to deny you travel when you try to tap in. I think you’re going to have a hard time arguing that the specific terms are constituted by topping up, rather than the clear offer and acceptance of tapping in.

While it hasn’t been testing in a rail setting it is widely accepted prepayment for credit does not constitute an ongoing legal commitment in other areas.

 

[Watershed]

I’m not sure I agree with this argument. The TOC/TfL is not being given an opportunity to agree to the contract, as when you top up you are not specifying a time or destination. Just having an Oyster card doesn’t entitle you to a contract whenever, wherever, and they are also within their rights to deny you travel when you try to tap in. I think you’re going to have a hard time arguing that the specific terms are constituted by topping up, rather than the clear offer and acceptance of tapping in.

While it hasn’t been testing in a rail setting it is widely accepted prepayment for credit does not constitute an ongoing legal commitment in other areas.

At what point are you entering into a contract when you use PAYG, in that case?

 

[Kilopylae]

At what point are you entering into a contract when you use PAYG, in that case?

When the card is validated/the tap in is accepted with a green light on the Oyster reader.

 

[Tetchytyke]

I agree, and the same is true of Oyster I would suggest, whereby the action of buying a card and topping it up means you have a contract

Topping up an Oyster card isn’t consideration, though: the money still belongs to you until you touch in and spend it.

With PAYG, irrespective of the medium, the contract for travel isn’t in force until you touch in.

 

[johncrossley]

TfL and TOCs in the South East actively promote contactless as a superior payment method over paper tickets, and therefore morally should give you at least as much benefit. They even allow you to set up a contactless account for each bank card, before you have even used it, which could be considered as intent.

 

[Bletchleyite]

When the card is validated/the tap in is accepted with a green light on the Oyster reader.

There are potentially multiple contracts. One is to maintain a pay as you go balance for the purpose of making as yet unspecified journeys, the other is to make specific journeys.

== Doublepost prevention - post automatically merged: Tuesday at 19:26 ==

Topping up an Oyster card isn’t consideration, though: the money still belongs to you until you touch in and spend it.

I'd say it is just as putting money in a current account is.

With PAYG, irrespective of the medium, the contract for travel isn’t in force until you touch in.

I'd also agree with that. There is more than one contract going on.

 

[AlterEgo]

I have to say I'm a bit confused at the suggestion disabled people have a special right to get their money back because they aren't feeling up to it on the day. This is not a reasonable adjustment in most other lines of business, is it? If the railway had always had this policy nobody would think it unfair in 2026. See below:

The more I think about this the more I suspect the industry's professed willingness to make exceptions to its refund policy for disabled people doesn't fully cure the fundamentally discriminatory nature of the rule itself. A disabled person who might need to cancel on the day of travel and get a refund previously had a contractual right to do that and now they don't. So they have been discriminated against as the railway has made it harder for them to use. If they don't travel by train for that reason, the discrimination is very real, it's just much harder to show a loss than it would be for somebody who had elected still to travel by rail, applied for a refund and been refused. And in that case the railway would certainly settle any claim before allowing a court to consider the discrimination point.

The only reason this is coming about is because of an Equality Impact Assessment, which has deemed the *change*, not the *policy itself* as problematic.

 

[redreni]

The only reason this is coming about is because of an Equality Impact Assessment, which has deemed the *change*, not the *policy itself* as problematic.

Okay, fine, the change, then. I'm not too fussed about that distinction as I can't see that anything turns on it. If somebody wins a challenge against the change then the new refund rules would have to be revised again.

It is possible to distinguish between
(a) the policy as amended and
(b) the policy as amended but with vague (at least as far as the public is concerned) mitigations and exceptions applied if people argue. I'm saying (b) might be a bit safer from successful challenge than (a), but it still looks discriminatory to me (or the change from the old refund rules to (b) still looks discriminatory to me, if you prefer).

If this is a proportionate means of achieving a legitimate aim then I am a pimple on the bottom of the Marquis of Queensbury's aunt.

 

[Tetchytyke]

TfL and TOCs in the South East actively promote contactless as a superior payment method over paper tickets, and therefore morally should give you at least as much benefit.

I’m honestly not sure what your point is with this.

There isn’t a contract for travel until you touch in. That is no different to the old days when you’d buy your ticket at the station just before catching your train. Once you have touched in you get all the same contractual benefits as with a paper ticket.

You can buy in advance if you prefer the certainty but the price for that certainty is that if you change your plans on the day of travel then you can’t get a refund. You pay your money and you take your choice.

== Doublepost prevention - post automatically merged: Tuesday at 20:46 ==

This is not a reasonable adjustment in most other lines of business, is it?

Most businesses will refund non-refundable tickets in extenuating circumstances.

 

[Bletchleyite]

There isn’t a contract for travel until you touch in. That is no different to the old days when you’d buy your ticket at the station just before catching your train. Once you have touched in you get all the same contractual benefits as with a paper ticket.

The difference is that there are plenty of stations, such as all London termini, when you don't (indeed can't) touch in until you board.

 

[AlterEgo]

Most businesses will refund non-refundable tickets in extenuating circumstances.

No they won't in the circumstances being talked about in the thread - not in my experience. And most definitely won't as a matter of written policy. Been there and done it!

 

[Kilopylae]

There isn’t a contract for travel until you touch in. That is no different to the old days when you’d buy your ticket at the station just before catching your train. Once you have touched in you get all the same contractual benefits as with a paper ticket.

Agreed.

Do RTVs create a contract? Does being awarded Nectar points create a contract, because they're redeemable as tickets? Plainly not. I don't see how being issued with an Oyster or KeyGo card is any different.

 

[Bletchleyite]

Agreed.

Do RTVs create a contract? Does being awarded Nectar points create a contract, because they're redeemable as tickets? Plainly not. I don't see how being issued with an Oyster or KeyGo card is any different.

They do create a contract, but not one for travel on a specific train service or services.

An RTV is a contract to provide payment for rail travel up to the face value on it. Nectar points are part of a contract to provide the benefits of that scheme.

There is more than one contract in play in most such cases.

 

[Kilopylae]

They do create a contract, but not one for travel on a specific train service or services.

An RTV is a contract to provide payment for rail travel up to the face value on it. Nectar points are part of a contract to provide the benefits of that scheme.

There is more than one contract in play in most such cases.

That's a fair point. I had forgot about your two-contract interpretation but I agree that it's quite persuasive.

I would argue that the NRCoT and your rights as a passenger, however, are specific to the second contract that the railway enters into when you purchase the ticket or validate the smartcard by tapping in.

 

[AdamWW]

I would argue that the NRCoT and your rights as a passenger, however, are specific to the second contract that the railway enters into when you purchase the ticket or validate the smartcard by tapping in.

Personally I think the NRCoT is a bit of a mess.

It purports to be a contract that comes into place when a ticket is purchased. So what validity do the terms describing when you can legitimately board a train without a ticket have?

I would buy the argument that the mere act of boarding a train can put an implicit contract in place (like sitting down in a restaurant and ordering a meal) but not a contract that explicitly says it applies once a ticket is purchased.

But I have no legal training and maybe I'm missing something.

 

[redreni]

Personally I think the NRCoT is a bit of a mess.

It purports to be a contract that comes into place when a ticket is purchased. So what validity do the terms describing when you can legitimately board a train without a ticket have?

They set out an exception to the provision that says you have to buy the ticket before you board else it isn't valid.

 

[AlterEgo]

Being invited to board by the passnger contract in order to pay later is consideration in my view and a contract is formed when the passenger takes action to show they are entering into it. For example by waiting for a train at the station or boarding a train. Being at home letting delayed trains go past isn't consideration.

 

[Kilopylae]

Being at home letting delayed trains go past isn't consideration.

Even if you've been issued with a Smartcard?

 

[AlterEgo]

Even if you've been issued with a Smartcard?

If you have a season ticket or product loaded, of course you've given consideration. I was mainly talking about people boarding without tickets.

 

[AdamWW]

They set out an exception to the provision that says you have to buy the ticket before you board else it isn't valid.

But how can something in a contract which specifically states at the start is made when you buy a ticket apply when you haven't bought a ticket?

 

[AlterEgo]

But how can something in a contract which specifically states at the start is made when you buy a ticket apply when you haven't bought a ticket?

It doesn't actually say that. It just says that the act of purchasing a ticket means you enter into an agreement. You can be bound by the contract even if you haven't purchased a ticket, surely you agree?

 

[AdamWW]

It doesn't actually say that.

It looks like it does to me.

It just says that the act of purchasing a ticket means you enter into an agreement. You can be bound by the contract even if you haven't purchased a ticket, surely you agree?

By a contract, yes - I've already said so. Just like eating in a restaurant.

But when on the first page the NRCoT says

"These ... comprise the binding contract that comes into effect between you and the Train Companies that provide scheduled rail services on the National Rail Network, when you purchase a Ticket"

my non legal brain struggles to see how it could be interpreted as intending to form this contract under any circumstance other than having purchased a ticket.

They could have said it comes into effect as soon as you step on a train. Or onto railway property. Or just remained silent on the matter. But they didn't. They chose to explicitly say that it comes into effect when you purchase a ticket. Am I supposed to read that as just one example they happened to give but there are other circumstances they couldn't be bothered to list when it also applies? Is that how contracts work?

 

[Mainline421]

As a general rule the contract can exist before payment is taken, when you travel from an unstaffed that doesn't remove your rights just because the fare due is collected later.

I doubt carrying an Oyster balance would be enough to be considered a contract though