Delay Repay on Non Strike Days

[Chrisgr31]

I used a debit card to buy my ticket, so I think it’s a discretionary scheme. There is also the issue that I only need a partial refund of a currently unknown amount as whilst when I bought the ticket I thought there were 52 Sundays in the year it appears there are 55 and counting!

I haven’t had a deadlock letter from Southern yet. Also plan to consider the Rail Ombudsman- already tried it once but need the deadlock letter or to wait 40 days from my complain. That deadline is approaching

 

[Starmill]

I used a debit card to buy my ticket, so I think it’s a discretionary scheme. There is also the issue that I only need a partial refund of a currently unknown amount as whilst when I bought the ticket I thought there were 52 Sundays in the year it appears there are 55 and counting!

I haven’t had a deadlock letter from Southern yet. Also plan to consider the Rail Ombudsman- already tried it once but need the deadlock letter or to wait 40 days from my complain. That deadline is approaching

You can claim partial refunds using the chargeback application. However as you say you've very limited recourse if the card issuer decides the claim against you.

By all means exhaust the process with the Rail Ombudsman. The Ombudsman should try to engage mediation first and if there's no agreement they will write an adjudication. The adjudication usually takes statements from the TOCs as factual however even when they aren't so I would not hold out too much hope. It will be very difficult to persuade the Ombudsman that GTR aren't entitled to rely on their own internal processes, even when they're obviously not. The Ombudsman will probably also consider the idea of their own subjective attitude to fairness, and they may conclude that it would be unfair to compensate you and not everyone else in the same circumstances. Obviously that's deeply flawed thinking.

 

[Chrisgr31]

Does anyone know how the 464 journeys for delay repay on an annual season ticket are calculated? On a straight off 5 days a week it works out at 46 .4 weeks. However with 10 bank holidays and 4 weeks holiday that doesnt seem right. I assume it is less weeks and a bit of weekend travel?

 

[Watershed]

Does anyone know how the 464 journeys for delay repay on an annual season ticket are calculated? On a straight off 5 days a week it works out at 46 .4 weeks. However with 10 bank holidays and 4 weeks holiday that doesnt seem right. I assume it is less weeks and a bit of weekend travel?

It's based on 232 working days in the year. The statutory minimum holiday entitlement is 5.6 weeks which is where you get your 46.4 weeks from.

 

[Chrisgr31]

It's based on 232 working days in the year. The statutory minimum holiday entitlement is 5.6 weeks which is where you get your 46.4 weeks from.

Thanks. So with the Sunday service meaning the first train qualifies as an off peak service I am missing out as effectively I am paying for Sundays when the fare would be cheaper. So my delay repay compensation for every other claim should be higher if that makes sense.

 

[Watershed]

Thanks. So with the Sunday service meaning the first train qualifies as an off peak service I am missing out as effectively I am paying for Sundays when the fare would be cheaper. So my delay repay compensation for every other claim should be higher if that makes sense.

I quite agree. It also fails to account for the fact that many people receive more than the statutory minimum entitlement of holidays, and that inevitably there will be days when people are ill or might have to work in a different place to normal - thus not using their season ticket every day.

 

[Chrisgr31]

Complaint submitted to the Rail Ombudsman. Strangely I am not holding my breath for a positive outcome!

 

[Jamiescott1]

Complaint submitted to the Rail Ombudsman. Strangely I am not holding my breath for a positive outcome!

Let us know how you get on

 

[35B]

It's an issue where there isn't a determinitive or clear-cut answer, I'm afraid.

The NRCoT and most TOCs' Passenger's Charters set out the TOCs' position that Delay Repay is paid against the timetable "published" (though not in any meaningful sense) at 10pm the night before.

I have severe doubts about the enforceability of that exclusion, given that 10pm the night before is so near to the date of travel that it effectively gives no notice whatsoever, as well as the fact that there is no requirement to notify passengers of any changes, and that it gives TOCs complete latitude over the timetable - ostensibly even if they reduce it to one that is essentially useless for commuters, as in your example.

You also have rights under the Passenger Rights and Obligations (PRO) Regulation, which sets out in Article 17 the right to a minimum level of compensation (25% of the relevant portion of the ticket for a 60-119 min delay, 50% for 120+ mins) in the event of delays. The issue is that the stated provisions only apply to single/return tickets, and for season ticket holders the legislation essentially 'hands the baton back' to the compensation arrangements decided by the TOC:


I don't think that a Delay Repay scheme tilted so heavily in favour of the TOCs (in terms of the ability to unilaterally vary, with effectively no notice, the timetable used as the reference point) can possibly constitute "adequate compensation". Clearly the legislation wouldn't allow a policy of "season tickets are discounted, so you cannot ever get compensation". But the precise latitude afforded to TOCs is something which is legally undecided.

What is more clear-cut legally is the right to re-routeing under Article 16, which entitles you to re-routeing at the earliest opportunity when a delay of 61+ minutes is anticipated. "Delay" is defined in Article 3 as meaning:


The TOCs can't insert their own definition of "published" into the legislation (certainly not in a manner that is unfavourable to passengers - see Article 6). Any by any sensible definition, the "published timetable" is something that is published several weeks or months in advance, not a few days, let alone 10pm the night before.

So as Southern have, presumably, refused to arrange any ticket acceptance to enable you to get to London on alternative routes, they are at least liable to pay for your costs of arranging the re-routeing yourself.

I'm sure you will face some push-back on this. But for Southern to suggest that it's OK to arbitrarily change the timetable in a manner that renders the season ticket completely unusable for its intended purpose, yet for you not to be eligible for any recourse, is clearly insupportable.

When were the revised timetables announced? When I had to travel (with a different operator) the morning after an RMT strike, clear notice was provided of the revised timetable, including the late start of service.

If so, though there’s nothing to be said for the customer service, I’m struggling to see grounds for delay repay - these are precisely the sort of circumstances where announcing a revised timetable at relatively short notice (days rather than hours) is reasonable.

 

[Watershed]

When were the revised timetables announced? When I had to travel (with a different operator) the morning after an RMT strike, clear notice was provided of the revised timetable, including the late start of service.

If so, though there’s nothing to be said for the customer service, I’m struggling to see grounds for delay repay - these are precisely the sort of circumstances where announcing a revised timetable at relatively short notice (days rather than hours) is reasonable.

In the context of a season ticket, I don't think it could be said to be remotely reasonable to reduce the timetable such that it's no longer possible to arrive at the ticketed destination before 9am.

 

[35B]

In the context of a season ticket, I don't think it could be said to be remotely reasonable to reduce the timetable such that it's no longer possible to arrive at the ticketed destination before 9am.

For a journey of about an hour, with empty down working required to get the up train and crew into place beforehand, it’s less unreasonable than you suggest if the line is unusable until after 7:00.

On a similar journey duration, my first train was after 8:00, and that on a working direct from the depot.

There should be recompense for loss of service, but specifically delay repay for an pre-announced emergency timetable is a stretch.

 

[Watershed]

For a journey of about an hour, with empty down working required to get the up train and crew into place beforehand, it’s less unreasonable than you suggest if the line is unusable until after 7:00.

It's certainly not a bad effort considering the circumstances, but that still doesn't make it reasonable from a passenger perspective to claim that it's a normal day and thus no compensation is due.

On a similar journey duration, my first train was after 8:00, and that on a working direct from the depot.

There should be recompense for loss of service, but specifically delay repay for an pre-announced emergency timetable is a stretch.

What compensation would you suggest? Your season ticket is essentially useless on that day, unless your employer allows you to turn up whenever you feel like it.

You buy your season ticket in the expectation, and on the basis, that there is a train that will get you to work for 9am or whatever it is. No amount of advance notice gets around the fact that failure to do so is in breach of those expectations, and therefore likely a breach of contract.

 

[35B]

It's certainly not a bad effort considering the circumstances, but that still doesn't make it reasonable from a passenger perspective to claim that it's a normal day and thus no compensation is due.


What compensation would you suggest? Your season ticket is essentially useless on that day, unless your employer allows you to turn up whenever you feel like it.

You buy your season ticket in the expectation, and on the basis, that there is a train that will get you to work for 9am or whatever it is. No amount of advance notice gets around the fact that failure to do so is in breach of those expectations, and therefore likely a breach of contract.

And I’ve not disputed that recompense for a “do not travel” day is appropriate - merely that the specific scenario of delay repay against the normal timetable should be applicable. Hence my question about when and how the revised timetable was announced - I strongly suspect that this was not a case of the late evening freeze of the days trains but a pre-announced emergency timetable. Hence my question.

 

[Watershed]

And I’ve not disputed that recompense for a “do not travel” day is appropriate - merely that the specific scenario of delay repay against the normal timetable should be applicable. Hence my question about when and how the revised timetable was announced - I strongly suspect that this was not a case of the late evening freeze of the days trains but a pre-announced emergency timetable. Hence my question.

If not Delay Repay then what do you suggest?

How does having a few extra days' notice help? If you don't have a car, it's not going to help you get to work.

 

[35B]

If not Delay Repay then what do you suggest?

Offering an extension of a day to the season akin to the old "void days"?

How does having a few extra days' notice help? If you don't have a car, it's not going to help you get to work.

Giving time to arrange a lift with a friend? Being able to arrange a different working pattern? A number of possibilities exist, which may or may not work for any particular individual

As for the notice, I agree - it is poor, and will have left many people stuck. But this forum has always focused - rightly - on how the small print operates to get to the right answer. That relies on reading, understanding and using that small print - and those contractual rights cut both ways. If Southern operated as others did, those emergency timetables would never have qualified for Delay Repay on a walk-up ticket, because they'd always have been announced in time, and there are carve outs for circumstances beyond the operator's control (remember, this was an RMT strike that affected Network Rail, meaning the line was closed).

 

[Chrisgr31]

its understandable on a walk up ticket there is no refund, after all you know there are no trains when you buy it.

When I bought my season ticket I didn’t anticipate that there were going to be at least 56 “Sundays“ in the year and potentially more. I cannot recall any other occasion where the entire morning peak service has been withdrawn without some form of compensation, extension to the ticket etc.

in reality the outcome is that I am being overcharged for my ticket as if I wanted to travel off peak I wouldn’t have a season ticket. It would be cheaper to buy a daily ticket.

Is delay repay the right compensation? Probably not as everyone’s travel requirements are different. I know that when buying my ticket I will only travel on one or two weekend services, I know I won’t travel in my 5 weeks annual leave nor on the 10 bank holidays. I know that on a couple of days every month is likely I won’t be travelling because I have a health appointment, am out the office, working from home etc. It may in fact be cheaper for me to buy combinations of monthly and weekly season tickets than buy an annual. I get an annual though as it’s convenient and therefore I potentially pay more than other options.

However I accept that compensation for lack of service can’t t,e in everyone’s circumstance. Delay repay exists and is an easy way to demonstrate the value of compensation that should apply so that’s what should be used.

 

[Watershed]

Offering an extension of a day to the season akin to the old "void days"?

Ok, so that's one potential option. But if your season ticket starts the day before the annual price increase - a common occurrence - then it's of little use. And ultimately, Delay Repay and refunds etc. all involve the TOC paying out of pocket. Why should they be allowed to keep money that has been paid for a service which hasn't been delivred?

Giving time to arrange a lift with a friend? Being able to arrange a different working pattern? A number of possibilities exist, which may or may not work for any particular individual

Perhaps. But not everyone will have had those options, and either way - none of them involve making use of the season ticket, which was bought on the basis of having a morning peak service.

As for the notice, I agree - it is poor, and will have left many people stuck. But this forum has always focused - rightly - on how the small print operates to get to the right answer. That relies on reading, understanding and using that small print - and those contractual rights cut both ways.

I fail to see how Southern have the contractual right to cancel all morning peak services, with impunity.

If Southern operated as others did, those emergency timetables would never have qualified for Delay Repay on a walk-up ticket, because they'd always have been announced in time

I'm not entirely sure what you're getting at here?

and there are carve outs for circumstances beyond the operator's control (remember, this was an RMT strike that affected Network Rail, meaning the line was closed).

There are no such carve outs in the NRCoT or PRO. Not even the Passenger's Charter attempts to maintain any such exemption.

The only place there could possibly even be argued to be an exemption is in the Consumer Rights Act. But even there - I severely doubt that the actions of a subcontractor (which is all that Network Rail is, from a passenger standpoint) would qualify as being beyond the trader's control.

 

[Haywain]

I'm not entirely sure what you're getting at here?

The words 'timetable of the day' spring to mind.

 

[35B]

The words 'timetable of the day' spring to mind.

Not just that, but heavy publicity through all channels.

 

[miklcct]

Does that mean a train company can change the timetable to one with massively reduced service at a whim without any compensation to season ticket holders?

 

[Chrisgr31]

That is of course the suggestion. In my complaint to the Rail Ombudsman I was clear to point out that Southern had fully withdrawn the morning peak hour service which was what I had for. If I wanted to travel off peak I wouldnt have a season ticket as the walk up fare is cheaper

 

[AlterEgo]

Does that mean a train company can change the timetable to one with massively reduced service at a whim without any compensation to season ticket holders?

Yes. This is why this was so controversial at the time this change to the NRCoT was revealed. The previous reading which essentially meant anyone with a changed itinerary several months ahead could both travel and claim compensation did need changing in the interests of balance, but the Published Timetable of the Day stuff is really bad and much, much worse.

 

[Watershed]

Does that mean a train company can change the timetable to one with massively reduced service at a whim without any compensation to season ticket holders?

That's the position the rail industry has adopted, yes.

But it hasn't been subject to legal scrutiny yet.

 

[miklcct]

But it hasn't been subject to legal scrutiny yet.

I hope to see a class action lawsuit on this.

 

[Chrisgr31]

I am pondering if I can claim Delay Repay for Saturday even if I planned not to travel. Southerns website states:-

"As a Season Ticket holder, if I do not travel on an RMT strike day can I claim compensation?
For monthly and longer Season Ticket holders
If you were unable to travel or followed our advice and chose not to travel on a strike date, you can claim compensation through our Delay Repay scheme by claiming a delay of 120+ minutes which will provide you with the value of one day’s travel.

This is only available for strike dates, not for days after.

This only applies to monthly and longer season ticket holders and not for weekly season tickets.

On this occasion, you do not need to have travelled or have been delayed to claim the compensation.

You need to apply for compensation online within 28 days of the strike date."

The penultimate line being the interesting one. Standard delay repay rules are of course that you travelled or planned to travel.

By the way on the NRCoT my ticket was issued on 7th Feb, the day after they came in to force. I wonder how well they were publicised!

 

[Watershed]

I hope to see a class action lawsuit on this.

Unfortunately the English legal system only allows class action claims in a very limited range of circumstances. And sadly I'm not convinced that this would qualify.

 

[XAM2175]

The penultimate line being the interesting one. Standard delay repay rules are of course that you travelled or planned to travel.

Yes, this is true, but some TOCs prefer to process season claims like these ones through DR rather than the 'proper' (and more complicated) channels.

 

[Chrisgr31]

It won't come as a great surprise but I now have the response from the Rail Ombudsman which rejects my claim:-

"I am contacting you with regards to the above case against Govia Thameslink Railway (the Rail Service Provider – “RSP”). I have carried out a full review of your case, considering the evidence from you and the Rail Service Provider (“RSP”), my findings of which are found below.

I understand your complaint is concerning the change in timetable on the 22nd and 24th June which were non-strike days. You have explained that the change in service meant that your arrival into London was 3 hours later than normal.

The RSP have maintained in their response that no compensation is due.

The terms of your ticket are mainly contained with the National Rail Conditions of Travel (NRCoT), which does confirm that delay compensation is paid against the “Published timetable of the Day”, which can be amended up to 10 pm the day before travel. This means that if you experienced a delay on the amended time table you would be able to claim Delay Repay. Therefore, compensation cannot be claimed against what the timetable was previously.

Following a review of all evidence presented by both parties, I conclude that the RSP has applied policy correctly in processing your Delay Repay claim. I consider there to be no basis to investigate your case any further and there is no scope for mediation in relation into the matter.As such, your Rail Ombudsman case has been closed. The referral of your case to the Rail Ombudsman does not dissolve you of your rights to pursue the claim through an alternative channel if you so wish."

This response could almost have been written following them reading this thread! I am considering my actions but I am minded initially to complain about the handling of my complaint. At no point during my correspondence with Southern did they mention the NRCoT

 

[Watershed]

It won't come as a great surprise but I now have the response from the Rail Ombudsman which rejects my claim:-

"I am contacting you with regards to the above case against Govia Thameslink Railway (the Rail Service Provider – “RSP”). I have carried out a full review of your case, considering the evidence from you and the Rail Service Provider (“RSP”), my findings of which are found below.

I understand your complaint is concerning the change in timetable on the 22nd and 24th June which were non-strike days. You have explained that the change in service meant that your arrival into London was 3 hours later than normal.

The RSP have maintained in their response that no compensation is due.

The terms of your ticket are mainly contained with the National Rail Conditions of Travel (NRCoT), which does confirm that delay compensation is paid against the “Published timetable of the Day”, which can be amended up to 10 pm the day before travel. This means that if you experienced a delay on the amended time table you would be able to claim Delay Repay. Therefore, compensation cannot be claimed against what the timetable was previously.

Following a review of all evidence presented by both parties, I conclude that the RSP has applied policy correctly in processing your Delay Repay claim. I consider there to be no basis to investigate your case any further and there is no scope for mediation in relation into the matter.As such, your Rail Ombudsman case has been closed. The referral of your case to the Rail Ombudsman does not dissolve you of your rights to pursue the claim through an alternative channel if you so wish."

This response could almost have been written following them reading this thread! I am considering my actions but I am minded initially to complain about the handling of my complaint. At no point during my correspondence with Southern did they mention the NRCoT

Unfortunately, as you've seen, the Rail Ombudsman is completely useless. It simply takes what the TOCs say at face value and doesn't seem to do any sort of digging or question what the TOC says.

If you want to pursue this further, your options now are either to make a section 75 claim (if you're eligible - you must have bought your season ticket directly from GTR, using a credit card), or to take legal action against GTR.

 

[Kite159]

Was the season ticket purchased before the NRCoT changed to include the "timetable of the day" wording?

If it was purchased before that wording got added then you probably have a stronger case if you want to take them to court for breach of contract.