Confusing railcard terms and conditions

[AdamWW]

As many here will know the conditions of travel say:
8.5 If you are travelling with a Railcard discounted Ticket and are unable to present the Railcard when asked by the staff or authorised agents of a Train Company, you will be treated as having joined a train without a valid Ticket...

But the 16-25 railcard terms and conditions say:
2.9. If you fail to comply with condition 2.7 and/or 2.8, the Train Company reserves the right to charge you the full price for the single fare applicable to your journey, as if no ticket had been purchased before starting the journey. In some cases you may also be issued with a Penalty Fare...
2.10. Fraudulent applications and fraudulent use of Railcards and Railcard discounted tickets may lead to criminal prosecution.

(2.7 says you should buy before you board and 2.8 says you need to carry your railcard and show it on request.)

There is of course a huge difference between being charged a fare as if no ticket had been purchased and being treated as if no ticket had been purchased.
Although the conditions of travel say you can be prosecuted for failing to carry a railcard, in the railcard conditions the strongest threat is a penalty fare unless you actually do something fraudulent.
Furthermore, this even appears to apply to failing to buy before you board (i.e. not actually having a ticket at all).

I realise that nowhere in the railcard conditions does it say you can't be prosecuted, and it would not be reasonable to argue that waving a railcard gets you out of being prosecuted for not buying before you board,
but I think anyone who only read the railcard terms would not understand that forgetting your railcard is a criminal offence.
(And this could easily happen because I believe the conditions are posted out with railcards purchased on-line, whereas you don't get handed the conditions of travel when buying tickets).

Does anyone know why the rules are presented in this way? It seems downright confusing to me.

Or am I missing something?

 

[FatContr0ller]

When I sell a railcard, the passenger gets the booklet back as their replacement reciept. This also contains railcard T&Cs in it.
I think 2.7 refers to buying a Railcard discounted ticket before boarding, as onboard staff don't have to issue discount fares, just proceed with a full price ticket (or penalty fare process) I could be wrong though, I never deal with onboard

 

[Tetchytyke]

Does anyone know why the rules are presented in this way? It seems downright confusing to me.

Two separate scenarios, but badly explained in the T&Cs.

The difference is between presenting a railcard-discounted ticket without a valid railcard, and not buying a railcard-discounted ticket before boarding.

 

[AdamWW]

When I sell a railcard, the passenger gets the booklet back as their replacement reciept. This also contains railcard T&Cs in it.

Yes so again the passenger is quite likely to have read the railcard conditions but not the conditions of travel which are much harsher.

I think 2.7 refers to buying a Railcard discounted ticket before boarding, as onboard staff don't have to issue discount fares, just proceed with a full price ticket (or penalty fare process) I could be wrong though, I never deal with onboard

So 2.7 is just saying that to get a railcard discount you must buy before you board unless you can't, and extends the right to buy on board if you can't use a machine to the case where the machine won't sell a railcard discounted ticket (unlikely now but I can see how it might have been the case in the past). I think that it could have been phrased much more clearly but OK.

We're still left with 2.8 which says you need to carry and show a railcard, and that if you don't the worst it threatens is a penalty fare. But the conditions of travel say that in fact you have to be treated as if you never bought a ticket at all.

Two separate scenarios, but badly explained in the T&Cs.

The difference is between presenting a railcard-discounted ticket without a valid railcard, and not buying a railcard-discounted ticket before boarding.

The conditions of travel are very clear -
8.5 If you are travelling with a Railcard discounted Ticket and are unable to present the Railcard when asked by the staff or authorised agents of a Train Company, you will be treated as having joined a train without a valid Ticket.

How do you intepret that as there being differences in the two scenarios?

 

[Tetchytyke]

How do you intepret that as there being differences in the two scenarios?

In one you have a ticket but no railcard, and in the other you have a railcard but no ticket.

 

[fandroid]

I believe that in contract law, contradictory terms like that are judged to default to the least onerous. The "Railway" could do with an oversight layer that can be appealed to when such contradictions occur and they could create a sort of Case Law that covers the issue until the Terms and Conditions are appropriately amended. Pie in the Sky, I know, in the Fragmented Railway, but we're told that we've all benefitted from "enterprise and efficiency"

 

[AdamWW]

In one you have a ticket but no railcard, and in the other you have a railcard but no ticket.

Yes but what do you think says that the two should be treated differently?

I cannot see how 8.5 can be interpreted in any other way

== Doublepost prevention - post automatically merged: 15 Apr 2023 ==

I believe that in contract law, contradictory terms like that are judged to default to the least onerous. The "Railway" could do with an oversight layer that can be appealed to when such contradictions occur and they could create a sort of Case Law that covers the issue until the Terms and Conditions are appropriately amended.

This would certainly seem fair. You could argue that the railcard conditions don't actually say you can't be prosecuted, they just imply it very strongly.

But - as I said before - given that someone is more likely to have read the railcard terms than the conditions of travel, this seems a bit unreasonable.

And of course although this is a contract between the passenger and the railway, it's determining what can be considered a criminal offence.

I don't know what oversight there is to ensure that the terms are reasonable.

 

[island]

Contracts cannot override the law. Whilst it is correct that in some circumstances a contract with contradictory terms can be construed against the drafter/in favour of a consumer, if a contract contradicts the law, the law still applies.

 

[Moonpie]

Do all railcards nit have a clause that says that where there are contradictions, that NRCOT take precedent?

 

[fandroid]

Contracts cannot override the law. Whilst it is correct that in some circumstances a contract with contradictory terms can be construed against the drafter/in favour of a consumer, if a contract contradicts the law, the law still applies.

I don't know that NRCOT are any more "the law" than the Railcard T & C are. The bylaws and the RoR Act are the law. Both sets of T & C provide interpretations of what travelling without a valid ticket is. There may be guidance or even legal precedent that says the NRCOT prevail in any case where's there's doubt, but that doesn't excuse allowing contradictory terms to be published, without any seeming attempt to correct the issue

 

[AdamWW]

I don't know that NRCOT are any more "the law" than the Railcard T & C are. The bylaws and the RoR Act are the law. Both sets of T & C provide interpretations of what travelling without a valid ticket is. There may be guidance or even legal precedent that says the NRCOT prevail in any case where's there's doubt, but that doesn't excuse allowing contradictory terms to be published, without any seeming attempt to correct the issue

Exactly.

The law says Thou Shalt Have a Valid Ticket.

The contracts define what that is.

So contract law is defining a criminal offence. Being off route is legal because the NRCOT says it's OK. Failing to have a railcard is a crime because the contracts say it counts as if no ticket is held.

Clearly it is not unsual for a the criminality of an act to be determined by a contract (e.g. I'm not taking a car club car without consent if I have a contract saying I've paid to use it now). But the way the railway contract works seems unusual to me as the railway gets to effectively re-write legislation by updating a contract.

I do wonder though....if someone wanted to push this through the courts....if the contract said that a discounted ticket without a railcard is an invalid ticket this would be clear cut. But it says you will be treated as if you had no ticket. I can see an argument that putting it in this way is an attempt to override the law because it doesn't say the ticket isn't valid, it says that they will pretend that it isn't.

Do all railcards nit have a clause that says that where there are contradictions, that NRCOT take precedent?

They certainly do for the 16-25 railcard.

So the railway presumably argues:
We handed you a piece of paper that says the worst that will happen if you fail to carry your railcard is a penalty fare.
But aha! It also says the NRCOT take precedence so you really should have got yourself a copy of that, looked through it, and seen that in fact we can take you to court for it, we just didn't say so in the obvious place.

It's not exactly the customer service that railway companies will all tell you that they offer, is it?

 

[Watershed]

The NRCoT and Railcard conditions are sort of the law because they determine what a valid ticket is, and hence when you are or aren't breaking the law. It's a very messy situation and just goes to show how wildly excessive it is to have an absolute offence of boarding without a valid ticket, together with TOCs that can privately prosecute and issue their own summonses.

 

[Snow1964]

So the railway presumably argues:
We handed you a piece of paper that says the worst that will happen if you fail to carry your railcard is a penalty fare.
But aha! It also says the NRCOT take precedence so you really should have got yourself a copy of that, looked through it, and seen that in fact we can take you to court for it, we just didn't say so in the obvious place.

It's not exactly the customer service that railway companies will all tell you that they offer, is it?

I think in law if you are given a leaflet with set of conditions at time of purchase, it would be very difficult for a court to say they could be overruled by a set of conditions you didn't receive (NRCOT).

Its sort of implicit in a transaction that any conditions listed apply (otherwise why list them).

The standard rule is general conditions only apply when not specifically modified by a contract. Supplying new leaflet of conditions during a purchase would be deemed applicable conditions.

 

[AdamWW]

The NRCoT and Railcard conditions are sort of the law because they determine what a valid ticket is, and hence when you are or aren't breaking the law. It's a very messy situation and just goes to show how wildly excessive it is to have an absolute offence of boarding without a valid ticket, together with TOCs that can privately prosecute and issue their own summonses.

Exactly.

I presume in most cases, strict liablity offences don't result in inappropriate prosecutions because the police and CPS would use sensible discretion.

== Doublepost prevention - post automatically merged: 16 Apr 2023 ==

I think in law if you are given a leaflet with set of conditions at time of purchase, it would be very difficult for a court to say they could be overruled by a set of conditions you didn't receive (NRCOT).

Its sort of implicit in a transaction that any conditions listed apply (otherwise why list them). The standard rule is general conditions only apply when not specifically modified by a contract.

Indeed but I presume that it's muddied by the line at the start that says effectively: Get yourself a copy of the NRCOT and make sure that we haven't written anything inconsistent.

 

[fandroid]

Indeed but I presume that it's muddied by the line at the start that says effectively: Get yourself a copy of the NRCOT and make sure that we haven't written anything inconsistent.

I have a feeling that higher courts would take a dim view of the "muddying". They aren't normally very tolerant of professionally run organisations hiding behind confusing sets of conditions when they are dealing with Joe Public for everyday transactions. In this case where said Joe P would never be expected to consult a lawyer every time he bought a Railcard or a train ticket.

 

[AdamWW]

I have a feeling that higher courts would take a dim view of the "muddying". They aren't normally very tolerant of professionally run organisations hiding behind confusing sets of conditions when they are dealing with Joe Public for everyday transactions. In this case where said Joe P would never be expected to consult a lawyer every time he bought a Railcard or a train ticket.

I would hope so, but I presume that the chances of anything related to this getting to a higher court are rather low.

Likewise I see no other mechanism whereby someone could complain about this and get it heard by anyone in a position to do something about it.