Appealing a Penalty Fare

[Craig1122]

No such thing as Promise to Pay on LNR. Only on Northern and I think TfW still have the concept.

Not helpful to this case but SWR still have at least one permit to travel machine which is a similar concept. It's at Longcross, it's relatively new but I've never seen it working. So it's possible there may be other odd exceptions across the network, especially at small stations like this.

 

[AdamWW]

No such thing as Promise to Pay on LNR. Only on Northern and I think TfW still have the concept.

TfW do indeed.

 

[AlterEgo]

Not helpful to this case but SWR still have at least one permit to travel machine which is a similar concept. It's at Longcross, it's relatively new but I've never seen it working. So it's possible there may be other odd exceptions across the network, especially at small stations like this.

There are now only five working PERTIS machines left on the network, all on SWR:

Beaulieu Road
Holton Heath
Longcross
Millbrook
Redbridge

 

[JM25]

Thank you.

Here is my draft of the appeal. I haven't included the preamble, but just says I am writing this appeal on my mother's behalf as she has been very upset by the whole thing hence needing help.




I believe the penalty fare is invalid for several reasons, which I will lay out below:

1. The ticket machine at How Wood Station does not take cash, which is her desired method of payment.

According to the ‘National Rail Conditions of Travel’ paragraph 6.1:

6.1 You must hold a valid Ticket or authority to travel before you board a train where there was the opportunity to buy one unless one of the following circumstances applies:

6.1.1 At the station where you start your journey, there is no means of purchasing a Ticket, either because there is no Ticket office open or a self-service Ticket machine is not in working order, or will not accept your only available method of payment (card or cash); and where notices indicate that Penalty Fares may apply from that station, you purchase a Permit to Travel if there is a working Permit to Travel issuing machine at the station where you start your journey – see Condition 10 for more information about Penalty Fares; or

6.1.2 The station is staffed, and you are specifically permitted to board a train service by an authorised member of staff, or you have received a written notice or heard an audible announcement to this effect; or

6.1.3 At the station where you start your journey, there is no means of purchasing a Ticket, because


6.1.3.1 the Ticket office is closed; or


6.1.3.2 a self-service Ticket machine is not in working order, or will not accept your preferred method of payment (card or cash); or


6.1.3.3 You have a disability and Ticket purchasing arrangements at the station you are departing from are not accessible to you.


In these cases, you must, as soon as you are reasonably able, buy an appropriate Ticket to complete your journey. The price of the Ticket you purchase will be the same as if you had bought a Ticket at the station from which you first departed.


INFORMATION: This means that you should buy a Ticket from the conductor on the train if there is one available; at an interchange station provided there is sufficient time before your connecting service; or, if neither of these is possible, at your destination.


(National_Rail_Conditions_of_Travel_2024.pdf)



Therefore, Mrs X was travelling within the conditions of travel- she was unable to pay in cash at the station and was intending, as she always does, to pay the conductor whilst on board the train. She mentioned in her previous appeal that she did not like using the machine, but as she was unaware of the NRCOT, she was not explicit in her explanation.




2. The contradictory and confusing nature of your signage at the station and previous customary practice.


My mother has used the Abbey Flyer service several times per year for the past twenty two years. This is the first time she has ever had a problem. She buys her ticket from the train’s conductor as he makes his rounds up and down the carriage, which is how a large proportion of the other travellers also pay. My mother states that she has never been told, nor ever heard the conductor tell any other passenger that buying a ticket from him, by whatever method they prefer, risks a penalty fare.


Her previous experience has led her to believe, quite reasonably, that buying her ticket from the conductor is a normal and valid means of purchasing a ticket, without any qualifiers. I would argue this constitutes ‘custom and practice’ as defined by UK law.


In addition to this long standing practice over more than two decades, the signage at the station is contradictory, confusing and adds weight to the belief that purchasing a ticket on the train is acceptable.

There is a large ‘Helpful Information’ poster, placed next to the ticket machine. The first topic is ‘Buying a ticket’ where is states:


‘Please buy a ticket from the ticket machine, via our website or ticket buying app, or if none of these options are possible from the conductor on the train as soon as you board’.


I would strongly argue that upon reading this sign, the belief that purchasing one’s ticket on board the train is a perfectly valid means of paying for your travel, is a ‘reasonable belief' and therefore anyone acting upon that belief is not doing so with malicious or criminal intent.






I hadn't added anything about the PF poster wording that was mentioned above as I'm not 100% sure about it?

Thanks again!

 

[Haywain]

to pay the conductor whilst on board the train

I don't often get involved in PF threads, but you should emphasise that she intended to pay with cash, if that is the case.

 

[AlterEgo]

The ticket machine at How Wood Station does not take cash, which is her desired method of payment.


According to the ‘National Rail Conditions of Travel’ paragraph 6.1:

6.1 You must hold a valid Ticket or authority to travel before you board a train where there was the opportunity to buy one unless one of the following circumstances applies:

6.1.1 At the station where you start your journey, there is no means of purchasing a Ticket, either because there is no Ticket office open or a self-service Ticket machine is not in working order, or will not accept your only available method of payment (card or cash); and where notices indicate that Penalty Fares may apply from that station, you purchase a Permit to Travel if there is a working Permit to Travel issuing machine at the station where you start your journey – see Condition 10 for more information about Penalty Fares; or

6.1.2 The station is staffed, and you are specifically permitted to board a train service by an authorised member of staff, or you have received a written notice or heard an audible announcement to this effect; or

6.1.3 At the station where you start your journey, there is no means of purchasing a Ticket, because


6.1.3.1 the Ticket office is closed; or


6.1.3.2 a self-service Ticket machine is not in working order, or will not accept your preferred method of payment (card or cash); or


6.1.3.3 You have a disability and Ticket purchasing arrangements at the station you are departing from are not accessible to you.


In these cases, you must, as soon as you are reasonably able, buy an appropriate Ticket to complete your journey. The price of the Ticket you purchase will be the same as if you had bought a Ticket at the station from which you first departed.


INFORMATION: This means that you should buy a Ticket from the conductor on the train if there is one available; at an interchange station provided there is sufficient time before your connecting service; or, if neither of these is possible, at your destination.


(National_Rail_Conditions_of_Travel_2024.pdf)



Therefore, Mrs X was travelling within the conditions of travel- she was unable to pay in cash at the station and was intending, as she always does, to pay the conductor whilst on board the train. She mentioned in her previous appeal that she did not like using the machine, but as she was unaware of the NRCOT, she was not explicit in her explanation.

This is fine and sufficient grounds on its own.

2. The contradictory and confusing nature of your signage at the station and previous customary practice.


My mother has used the Abbey Flyer service several times per year for the past twenty two years. This is the first time she has ever had a problem. She buys her ticket from the train’s conductor as he makes his rounds up and down the carriage, which is how a large proportion of the other travellers also pay. My mother states that she has never been told, nor ever heard the conductor tell any other passenger that buying a ticket from him, by whatever method they prefer, risks a penalty fare.


Her previous experience has led her to believe, quite reasonably, that buying her ticket from the conductor is a normal and valid means of purchasing a ticket, without any qualifiers. I would argue this constitutes ‘custom and practice’ as defined by UK law.


In addition to this long standing practice over more than two decades, the signage at the station is contradictory, confusing and adds weight to the belief that purchasing a ticket on the train is acceptable.

There is a large ‘Helpful Information’ poster, placed next to the ticket machine. The first topic is ‘Buying a ticket’ where is states:


‘Please buy a ticket from the ticket machine, via our website or ticket buying app, or if none of these options are possible from the conductor on the train as soon as you board’.


I would strongly argue that upon reading this sign, the belief that purchasing one’s ticket on board the train is a perfectly valid means of paying for your travel, is a ‘reasonable belief' and therefore anyone acting upon that belief is not doing so with malicious or criminal intent.

I would not include this if your contention is she was paying with cash.

"A non-statutory sign was confusing plus she's been allowed to do this before" is mitigation not a defence! This is akin to an argument along the lines of:

"Hello, I wasn't speeding here, I was driving in accordance with the law which says X thank you... but anyway let me tell you I've been driving fast here - no idea what speed - for ages, been stopped, got let off, this official road sign says 30mph, but another non-statutory sign says 40, confusing innit"

There is no need to introduce this because all it does is weaken your very first point - *she did nothing wrong*.

Regardless, custom and practice are not relevant here and your introduction of saying it is relevant law here is misguided. People are sold tickets on board trains all the time by conductors, who under the law cannot issue penalty fares. On this occasion she was caught by an RPI (under the law they are an Authorised Collector of penalty fares). This is how penalty fares work - that you have bought tickets on board before is not relevant. Custom and practice has no bearing on the validity of a penalty fare - in effect, you argue here that never, ever, may a penalty fare be issued, anywhere, ever, because train companies may sell tickets onboard from staff who are not Authorised Collectors. It's unfocused, and not making a point which serves the appeal. Penalty Fares do not penalise malicious or criminal intent; they are a statutory instrument for charging a higher fare where the customer has acted in breach of the contract. Your contention must be solely that she did not breach that contract.

I hadn't added anything about the PF poster wording that was mentioned above as I'm not 100% sure about it?

​

It isn't compliant with the regulations as it has the wrong wording: https://www.legislation.gov.uk/uksi/2018/366/schedule/1

Standard notice

1.—(1) A standard notice must contain—

(a)the penalty fares logo as shown in Part 3;

(b)the word “WARNING” in large, prominent text at the top of the notice;

(c)the wording “Please buy your ticket before you travel otherwise you may be charged a Penalty Fare”;

This probably seems like a minor matter but the panel will have to consider if the Penalty Fare was issued lawfully, and this alone would be grounds to show it wasn't. It should absolutely be included.

 

[AdamWW]

Regardless, custom and practice are not relevant here and your introduction of saying it is relevant law here is misguided. People are sold tickets on board trains all the time by conductors, who under the law cannot issue penalty fares. On this occasion she was caught by an RPI (under the law they are an Authorised Collector of penalty fares). This is how penalty fares work - that you have bought tickets on board before is not relevant. Custom and practice has no bearing on the validity of a penalty fare - in effect, you argue here that never, ever, may a penalty fare be issued, anywhere, ever, because train companies may sell tickets onboard from staff who are not Authorised Collectors.

I agree that it's not grounds that the penalty fare was issued incorrectly and, whatever the original intent was, an appeals body is unlikely to accept anything other than an inccorectly issued fare as valid grounds for appeal.

However I'd say it's a perfectly good reason to make a complaint - while it's true that guards can't issue penalty fares the law doesn't prevent the railway from making an attempt to let passengers know that they shouldn't be buying on board rather than having guards going cheerfully down a train selling tickets to all and sundry.

 

[35B]

I agree that it's not grounds that the penalty fare was issued incorrectly and, whatever the original intent was, an appeals body is unlikely to accept anything other than an inccorectly issued fare as valid grounds for appeal.

However I'd say it's a perfectly good reason to make a complaint - while it's true that guards can't issue penalty fares the law doesn't prevent the railway from making an attempt to let passengers know that they shouldn't be buying on board rather than having guards going cheerfully down a train selling tickets to all and sundry.

I'm happy to defer to others, but think the decision by the company to state one thing then act in a completely different way does raise significant issues over the validity of their action - in just the same was as the courts (rightly) judge intent by actions for ticketless travel

 

[AdamWW]

I'm happy to defer to others, but think the decision by the company to state one thing then act in a completely different way does raise significant issues over the validity of their action - in just the same was as the courts (rightly) judge intent by actions for ticketless travel

I expect legally they are correct, but that doesn't in itself make it the right thing to do.

And - going back to the comment at the start regarding unreliable ticket machines - some time back when TfW installed station ticket machines that would regularly take money but not offer tickets in return, guards were encouraging people to buy on trains.

No penalty fares then, but they could of course still prosecute.

 

[AlterEgo]

...the courts (rightly) judge intent by actions for ticketless travel

They don't. Nearly all prosecutions now are under the Railway Bylaws, which are strict liability, and one's intent is immaterial. Same goes for Penalty Fares; no intent is alleged, need be proven, or even comes into question at any point.

 

[Fawkes Cat]

I haven't included the preamble, but just says I am writing this appeal on my mother's behalf as she has been very upset by the whole thing hence needing help.

On this point, it would be good if you could enclose signed authority from your mother confirming that she has authorised you to act on her behalf. You can of course write the note for her and then get her to sign it.

I would hope that it wouldn't be necessary - but if the railway start digging their heels in, it should avoid them arguing that they can only deal directly with the customer/GDPR prevents them corresponding with you and so on.

 

[30907]

One additional point: under heading 1, omit using (....) the non-relevant sentences such as 6.1.2.

Make it as easy as possible for the reader!

 

[MotCO]

I would only appeal on the two grounds that the Penalty Fare was not issued in accordance with the Regulations and NRCOT, include your argument, referring to the relevant regulations, and then append the Regulations and NRCOT, highlighting the relevant sections. If you make it easy for the Appeal reader to follow your argument, in a short statement, with attached evidence, it might be easier to win your Appeal. Do anything to give the Appeal reader an easy life!

 

[Egg Centric]

The third appeal is not a test to see who is very clever or not, so avoid the temptation to lose focus and instead concentrate on the two matters which are certainly contrary to the relevant Regulations which render the PF unlawful.

This is so important and imo an overlooked point. It's possible that the points you raise are going to be evaluated by switched on, highly motivated people who turned down legal professorships at Oxford so they could evaluate penalty fare appeals. It seems unlikely though. Make it simple for them and keep things to the strongest points only. In modern terms don't overflow their context window!

 

[Fawkes Cat]

This is so important and imo an overlooked point. It's possible that the points you raise are going to be evaluated by switched on, highly motivated people who turned down legal professorships at Oxford so they could evaluate penalty fare appeals. It seems unlikely though. Make it simple for them and keep things to the strongest points only. In modern terms don't overflow their context window!

I don't think that we will ever agree on this one, but for contrast, let me point out:

This is the third and final appeal. So there's no chance of another go if it turns out that the appeal panel don't agree with your argument. It's also (in my opinion) a good strategy to demonstrate that the railway's position is hopeless in that if they reject your first ground of appeal, then they should accept your second, or third, and so on. And if (as is normally the case) you only need to win on one point to make the penalty go away, that's good enough.

So my suggestion is to argue all your realistic grounds of appeal.

Where I do agree with other posters is that it's important to make things easy for whoever assesses your appeal. So don't just bang down your arguments in any old order. Instead
- note the relevant facts. Spell out which are going to be agreed by you and the railway (things like what train, whether you showed a valid Railcard) and those which might be challenged) whether this was an accident or deliberate for example)
- decide which of your reasons for appeal are strongest. Starting with the strongest, explain in full detail why that means the penalty should be overturned. Then do the same for your second argument. And your third. And so on.

 

[SuspectUsual]

Where I do agree with other posters is that it's important to make things easy for whoever assesses your appeal. So don't just bang down your arguments in any old order. Instead
- note the relevant facts. Spell out which are going to be agreed by you and the railway (things like what train, whether you showed a valid Railcard) and those which might be challenged) whether this was an accident or deliberate for example)
- decide which of your reasons for appeal are strongest. Starting with the strongest, explain in full detail why that means the penalty should be overturned. Then do the same for your second argument. And your third. And so on.

If it was me my format would be:

- niceties / context: one short paragraph

- headlines reasons for appeal - numbered, double spaced, in bold

- detail for reason 1

- detail for reason 2

- detail for reason 3

- sign off

I think it’s really important that in the first few seconds of reading the reviewer sees all the grounds of appeal really clearly

 

[MotCO]

If it was me my format would be:

- niceties / context: one short paragraph

- headlines reasons for appeal - numbered, double spaced, in bold

- detail for reason 1

- detail for reason 2

- detail for reason 3

- sign off

I think it’s really important that in the first few seconds of reading the reviewer sees all the grounds of appeal really clearly

I agree, but I personally would keep the Detail succinct and to the point, with supporting information (regulations etc) in an appendix.

 

[JM25]

Thank you all. I do really appreciate your time and opinion.

Thank you for explaining the non compliant wording. I think that point d as well as c is different to the plaster and therefore it is non compliant on two counts?

I have taken on board your ideas about layout and made changes.

I have wavered but I think I am going to include point two, which I understand some people questioned. My reasoning is thus- whilst we can all agree that points 1 and 3 (wanting to pay in cash and non compliant wording) and more straight forward, surely it will be questioned as to why she did not bring up the thing about cash right at the beginning? It looks suspicious that she didn't. Therefore I think point 2 explains why she didn't just state she wanted to pay cash - because she was completely confused and side tracked by the revelation that she was not supposed to buy tickets on the train as the default. She got very upset at the time, and then indignant and upset when writing the appeals, focussing on the idea that she had been trying to cheat.

I will sit on it for the next few hours, come back and read it one more time to make sure I'm still happy with it and then hit send.



Thank you again

 

[KirkstallOne]

Good luck and do let us know the outcome. I would be following this up with a complaint after it is resolved as this isn’t a difficult edge case and the experience has obviously been stressful for your mother. Exactly the sort of heavy handed example that has brought justified opprobrium onto the world of rail prosecutions and revenue protection. I am sure SWR will do a quick reverse ferret when presented with the facts and a whiff of bad publicity.

 

[JM25]

Hi All,

I just thought I would pop back to let you know that we heard back today - appeal upheld.

Thank you all very much for your help

 

[WesternLancer]

Hi All,

I just thought I would pop back to let you know that we heard back today - appeal upheld.

Thank you all very much for your help

Thanks. V pleased to hear this. Hope your mum feels vindicated and also not put off train travel and the independence it can give getting out and about.

Well done for your efforts in pursuing this.

 

[Egg Centric]

Hi All,

I just thought I would pop back to let you know that we heard back today - appeal upheld.

Thank you all very much for your help

Did they provide a "reason" for upholding it?

 

[AlterEgo]

Hi All,

I just thought I would pop back to let you know that we heard back today - appeal upheld.

Thank you all very much for your help

Good news!

 

[Gonzoiku]

Did they provide a "reason" for upholding it?

Eh? Allowed the appeal and you want an explanation??

You maybe expect too much!

GZ

 

[furlong]

The regulations specify that reasons must always be given see Schedule 2, 7(b) and 17(b).

 

[island]

The regulations specify that reasons must always be given see Schedule 2, 7(b) and 17(b).

Whilst this is true, there is in practice no consequence for not doing so, and no, it doesn't invalidate every penalty fare issued by that TOC.