EMR - Penalty Fare - initial appeal refused (genuine circumstances)

[NTIAEP]

Good Evening All

Details are as follows:
- its not often I use the train service (and the below is a prime example of why);
- purchased ticket(s) using Trainline.com to travel from Barnsley>Sheffield>Ilford(London)
- was expecting to receive an e-ticket but for some reason had to collect paper tickets from station, which I duly did;
- scheduled 1st leg from Barnsley>Sheffield (Northern Trains) was cancelled, but fortunately the next service allowed me to make my 2nd leg EMR connection Sheffield>LondonSTP which itself departed late;
- boarded train and took my pre-booked seat;
- sometime later EMR 'ticket inspector' came and asked for tickets;
- checked my pockets, luggage and even the bin (behind the seat as I'd just discarded some paper), all to no avail;
- my tickets were nowhere to be seen and despite me showing the email as 'proof of purchase', she wasn't having any of it which is understandable;
- she issued me with a PFN of £100+£38 and was advised that if I found my tickets, she would cancel the FPN or I could request to do so via the appeals process;
- I again checked my pockets, luggage and then decided to retrace my steps in the carriage;
- fortunately, I found both stubs (for the 2legs) and the purchase receipt on the floor of the foyer, just as you enter the carriage;
- on asking the conductor as to the whereabouts of the 'ticket inspector' I was informed that she had already alighted the service at the previous stop;
- I submitted an appeal online at www.penaltyservices.co.uk with a photo of the stubs/receipt, only to have it rejected (please see attached pics);

- A slight amendment/correction to my initial appeal (and dont know if it makes any difference??) in that I retraced my steps after the 'ticket inspector' left the carriage, but no idea how long thereafter she alighted the train.



Any advice/suggestions welcome......and many thanks in advance.

Regards - NTIAEP

 

[island]

Losing your ticket, even temporarily, does not constitute a reason not to be issued a Penalty Fare.

But this Penalty Fare Notice is invalid because it does not contain a statement that you are entitled to a receipt if you pay the Penalty Fare, in breach of section 5 (2) (j) of the Railways Penalty Fares Regulations 2018.

You should therefore make a second appeal citing this, as it means the Penalty Fare was not issued in accordance with the Regulations.

Despite that your appeal was rejected, the fact that an appeal has been processed means you're also immune from prosecution for the offence of failing to show your ticket on request on the train.

 

[30907]

Unfortunately, it is your responsibility to look after your tickets (on whatever medium) and show them when requested.

I think submitting the receipt may have worked against you, as it is mentioned in their para.7. I would be inclined to try again, excluding said receipt. There's no harm.

Other grounds for a further appeal might be
- you were not given the option of leaving the train at the next stop and paying the fare to that point. As that was Leicester (the inspector left there, it seems) this might be to your advantage.
(TBH you wouldn't have wanted to do this, as it would have cost you more, but there's a principle here.)

I see island has found another technical ground for appeal

 

[Hadders]

Welcome to the forum!

This is an unfortunate incident. London Underground do not issue barcode tickets at theor gatelines which is why your ticket was a traditional credit card sized ticket that had to be collected from a ticket machine.

Legally you must be able to show a ticket when asked to do so and you were unable to do this which is an offence. From the railway's point of view the problem is it is very easy for someone to pass a ticket to someone else, and if asked to produce a ticket show the booking reference. Issuing a Penalty Fare is a correct course of action (note it isn't a fine (although it might feel like one), only a court can impose fine as a punishment upon conviction). A Penalty Fare is a higher than normal fare that is given to someone who has made a mistake. Ordinarily I would advise paying the Penalty fare to stop the matter from escalating and once the matter is concluded complaining to EMR's customer relations department to see if they would be willing to make an ex-gratia payment given the circumstances.

It is worth submitting a 2nd appeal for the reasons @island has suggested.

 

[NTIAEP]

But this Penalty Fare Notice is invalid because it does not contain a statement that you are entitled to a receipt if you pay the Penalty Fare, in breach of section 5 (2) (j) of the Railways Penalty Fares Regulations 2018.

You should therefore make a second appeal citing this, as it means the Penalty Fare was not issued in accordance with the Regulations.

Is this a previously tried and successfully tested approach?

Unfortunately, it is your responsibility to look after your tickets (on whatever medium) and show them when requested.

I think submitting the receipt may have worked against you, as it is mentioned in their para.7. I would be inclined to try again, excluding said receipt. There's no harm.

Apologies for the novice question, but why would evidencing the receipt work against me? Do you have a link to this para.7 please?

 

[thedbdiboy]

There is a three stage appeal process. It's worth appealing this all the way as the final independent stage generally will apply a bit more flexibility to interpret 'exceptional circumstances', given that you were subsequently able to produce the tickets. It's not a guarantee but there's no harm in this case in trying.

 

[NTIAEP]

....and another question w.r.t. the PFN:

Assuming that I'm ok with paying the reduced Penalty Fare of £50 (which I'm not on principle), would I also still be expected to pay the Full Single Fare of £89, despite having evidenced a valid ticket for the journey, albeit later?

 

[sheff1]

Despite the letter stating that warning posters, as required by the Regulations, are on display at every Penalty Fare station I have not seen a compliant notice at any station following the change to the Regulations effective from January 2023 and hence I would be very surprised if the notices at Barnsley were compliant - the notices at Sheffield are definitely not compliant.

Whether this ground for appeal should be raised I will leave to experts to comment on - my gut feeling is that the invalidity highlighted by island should be enough by itself.

 

[furlong]

" was advised that if I found my tickets, she would cancel the FPN or I could request to do so via the appeals process;"

Did you make this the primary reason for your appeal, under the exceptional circumstances provision? The appeals body should honour that - and may check with the person who said it to you if they wish to verify it. (Either if they directly remember, or if they can't, they might confirm that it is what they would say to someone in such circumstances.) The main reason the appeals process exists at all is to be able to reconsider situations similar to the one you describe.

You could add on the other technicalities that people mention for good measure (non-compliant notices at station, non-compliant printed notice, issued to wrong station - it has to be issued the next station the train stops at unless you explicitly request otherwise and the inspector agrees to your request) and use the template from a few recent threads on here.

 

[island]

....and another question w.r.t. the PFN:

Assuming that I'm ok with paying the reduced Penalty Fare of £50 (which I'm not on principle), would I also still be expected to pay the Full Single Fare of £89, despite having evidenced a valid ticket for the journey, albeit later?

The law requires that a person whose penalty fare appeal is accepted is still liable to pay the full single fare for the journey made. There is not an exception for the circumstances you were in, although I would hope EMR would not pursue it. (Their only avenue for doing so would be a civil claim in the county court, as they’re barred from prosecuting the failure to show a ticket.)

 

[185143]

The law requires that a person whose penalty fare appeal is accepted is still liable to pay the full single fare for the journey made. There is not an exception for the circumstances you were in, although I would hope EMR would not pursue it. (Their only avenue for doing so would be a civil claim in the county court, as they’re barred from prosecuting the failure to show a ticket.)

"We accept that the penalty is not due. But you still have to pay most of it anyway."

The word "cakeism" springs to mind on that one!

 

[AlterEgo]

"We accept that the penalty is not due. But you still have to pay most of it anyway."

The word "cakeism" springs to mind on that one!

Paying the fare due isn’t a penalty though, it’s simply the fare due.

 

[Hadders]

Moderator Note:
This thread has gone off-topic so I have moved a number of posts about Penalty Fare vales into a new thread. Please can we keep this thread on-topic which is to provide practical advice and assistance to the OP.

Discussion on Penalty Fare Values

Paying the fare due isn’t a penalty though, it’s simply the fare due. The problem is that in some cases it's questionable that it is actually due, at least morally. Such as in this case. Yes, sure, someone else could have used it, but sometimes just a little bit of customer service and...

www.railforums.co.uk

 

[furlong]

The law requires that a person whose penalty fare appeal is accepted is still liable to pay the full single fare for the journey made.

Indeed, the current version of the regulations makes no special provision for circumstances where the fare has already been paid - it must still be paid again even if the amount requested was incorrect - and the appeals body has no power to interfere with this. For the OP to avoid paying twice, they'll either need to show it was issued unlawfully (e.g. using those technicalities) so the entire situation (penalty and appeal) could be unwound if payment was pursued, or else persuade the train company not to pursue the second payment.

 

[Starmill]

I would be surprised if the signage at Sheffield complied with the Regulations at the time you boarded your train there. It certainly didn't the last time I was there.

 

[sheff1]

I would be surprised if the signage at Sheffield complied with the Regulations at the time you boarded your train there. It certainly didn't the last time I was there.

As I stated in post #8, it did not on Sunday and never has done since the Regulations changed.

I would be absolutely amazed if the signage has been changed during the week as EMR, in common with other TOCs, clearly act as if complying with legislation is not for them.

 

[NTIAEP]

Right, here goes again.....

Below is the contents of my 2nd appeal:

----------------
- purchased ticket(s) using Trainline.com to travel from Barnsley>Sheffield>Ilford(London)
- expecting e-ticket(s) but had to collect paper ticket(s) from station, which I did;
- note that the Collection Receipt (see pics) ToD CTR of H3FN8GH7 matches the purchase email confirmation, so I can't be accused of having acquired another passenger's tickets;
- scheduled 1st leg 18:45 Barnsley>Sheffield (Northern Trains) was cancelled. Fortunately the next service (arriving into Sheffield sometime shortly after 19:30) just about allowed me to make the 2nd leg 19:37 Sheffield>LondonSTP (EMR) connection;
- sometime after boarding the Sheffield>LondonSTP service & occupied my pre-booked seat, the EMR 'ticket inspector' arrived & asked for tickets;
- couldn't find my tickets & despite me showing the email confirmation as 'proof of purchase', it wasn't accepted;
- was issued a PFN of £100/50+£89;
- again checked my pockets, luggage & then decided to retrace my steps;
- found the tickets & collection receipt (see attached pic) on the floor of the foyer, just as you enter the carriage;

I kindly request that my appeal be allowed on the below grounds:
- I was advised by the 'ticket inspector' that if I found my tickets, she would cancel the FPN or I could request so via the appeals process (but on asking the conductor as to her whereabouts at the time, I was informed by him that she had already alighted the train at the previous stop);
- it has since transpired that the Penalty Fare Notice was issued in breach of The Railways (Penalty Fares) Regulations 2018 as follows & thus INVALID:
Section 5 (2) (j) - as it does not contain a statement informing me that I would be entitled to a receipt if I paid the penalty fare;
Section 5 (5) (a) - as I was not given the opportunity to alight the moving train at the next scheduled stop.
- it has also been confirmed by a third-party that the Penalty Fare warning posters at Sheffield are non-compliant with the Regulations effective January 2023.
----------------

and the attached .PDF is the subsequent rejection:

Further thoughts/advice? The last paragraph on page1 suggests that the FPN was issued correctly. But it seems that the 2nd Appeal Assessor has completely missed my representation about non-compliance with Section 5 (2) (j) of the 2018 Regs (unless there's something in the 2022 and 2023 amendments that supercedes/negates this. I can't find anything to that effect).

@sheff1 - are you able to provide a pic(s) of the current Penalty Fare signage which would corroborate with your post? The first paragraph on page2 of the latest rejection alleges that the signage at Sheffield is compliant.

Also, if the FPN was (allegedly) issued in accordance with the Regs 2018 (as amended 2022), does the signage have to be in accordance with the Jan2023 regs.........or does the FPN have to be issued in accordance with Jan2023 regs for the signage to be a relevant issue?

Many thanks again to all offering their help/time.

 

[MotCO]

(The last sentence of their letter gets me - Thank you for using Penalty Services - as though there was a choice.) ☹️

 

[furlong]

Once again, this shows the bias in the process - if you want a chance of winning an appeal you need to do their work for them and set out your reasoning in a formal manner, reminding them of their obligations in terms of obtaining and assessing the evidence, and focus on the important points. You left some gaps in your arguments and (if they even understood what you meant) they didn't fill them out the way you'd hoped.

Regarding a lost ticket, you might wish to quote Hansard from the Second Reading which shows parliament was told that a lost ticket would not necessarily lead to a Penalty Fare and it would be cancelled on appeal if a "reasonable excuse" was put forward and accepted. You should phrase this part of your argument in the form of such a 'reasonable excuse' which falls under the 'special circumstances' provision of the current regulations.

Mr. McNair-Wilson...What is more important, the trained, authorised personnel will be given discretion. If a person says, "I have lost my ticket"—not a completely unknown predicament, in which some of us may have found ourselves—it will be possible for the official to say, "That is all right, you can go." There will also be a 21-day discretionary period. If a notice is issued to a passenger, he will be able to put his case in writing. The matter will then be examined by the appropriate authorities at head office. There will be no attempt to bulldoze or bully passengers. If a reasonable excuse is given, discretion can be exercised by those in authority.

I would hold that what the inspector told you about an appeal if you found your ticket was correct in terms of how the legislation was expected to be implemented, and it is Penalty Services who are getting this wrong, not the Authorised Collector.

 

[sheff1]

@sheff1 - are you able to provide a pic(s) of the current Penalty Fare signage which would corroborate with your post? The first paragraph on page2 of the latest rejection alleges that the signage at Sheffield is compliant.

I will be at the station this weekend and will take a picture. Of course, if EMR have made the posters compliant within the last month that will not be of any help ...... but if they have I will absolutely shocked !

 

[Fawkes Cat]

Once again, this shows the bias in the process - if you want a chance of winning an appeal you need to do their work for them and set out your reasoning in a formal manner, reminding them of their obligations in terms of obtaining and assessing the evidence, and focus on the important points. You left some gaps in your arguments and (if they even understood what you meant) they didn't fill them out the way you'd hoped.

Regarding a lost ticket, you might wish to quote Hansard from the Second Reading which shows parliament was told that a lost ticket would not necessarily lead to a Penalty Fare and it would be cancelled on appeal if a "reasonable excuse" was put forward and accepted. You should phrase this part of your argument in the form of such a 'reasonable excuse' which falls under the 'special circumstances' provision of the current regulations.



I would hold that what the inspector told you about an appeal if you found your ticket was correct in terms of how the legislation was expected to be implemented, and it is Penalty Services who are getting this wrong, not the Authorised Collector.

I wouldn't want to discourage the OP from pursuing their appeal, but I think that @furlong may be putting rather too much weight on the quote from Hansard. I've added some italics for emphasis:

Mr. McNair-Wilson...What is more important, the trained, authorised personnel will be given discretion. If a person says, "I have lost my ticket"—not a completely unknown predicament, in which some of us may have found ourselves—it will be possible for the official to say, "That is all right, you can go." There will also be a 21-day discretionary period. If a notice is issued to a passenger, he will be able to put his case in writing. The matter will then be examined by the appropriate authorities at head office. There will be no attempt to bulldoze or bully passengers. If a reasonable excuse is given, discretion can be exercised by those in authority.

There's nothing in the quote that says that these things will or must happen - just that they can. So the railway could respond that while these things might happen, in this case they haven't - and the railway has done nothing wrong by not making them happen.

 

[John R]

I wouldn't want to discourage the OP from pursuing their appeal, but I think that @furlong may be putting rather too much weight on the quote from Hansard. I've added some italics for emphasis:



There's nothing in the quote that says that these things will or must happen - just that they can. So the railway could respond that while these things might happen, in this case they haven't - and the railway has done nothing wrong by not making them happen.

I agree, though I would argue that if the railway doesn't show discretion when a ticket is found prior to the person alighting from the train (and in particular having shown it to an official on the train - albeit not the one that issued the PF), then when would it ever offer discretion?

 

[SuspectUsual]

There's nothing in the quote that says that these things will or must happen - just that they can. So the railway could respond that while these things might happen, in this case they haven't - and the railway has done nothing wrong by not making them happen.

Exactly. It's just bad law, plain and simple. Too much vague phrasing

I agree, though I would argue that if the railway doesn't show discretion when a ticket is found prior to the person alighting from the train (and in particular having shown it to an official on the train - albeit not the one that issued the PF), then when would it ever offer discretion?

Probably never, because it isn't a requirement

 

[furlong]

Probably never, because it isn't a requirement

But it is. It is primarily for cases like this one that the appeals system was created - to consider objectively whether discretion needs to be applied in the interests of justice given the purpose of the legislation. Or in other words, to decide in any particular case whether or not the evidence points to deliberate fare evasion worthy of punishment. The current wording that incorporates this is: "there are compelling reasons why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare."

(It's interesting to reflect on how the Appeals Panels like to think of their role that way when we see them reluctant to uphold an appeal on a technicality where there clearly was deliberate fare evasion, but when there probably wasn't deliberate fare evasion they still try to hide behind their own technicalities and reject appeals.)

 

[John R]

Probably never, because it isn't a requirement

I'm not sure of that. One of the valid reasons that can be given for an appeal is where there are "compelling reasons", which I think comes as close as you can without using the word discretion, which clearly can't be used from a legal perspective.

So the operator is obliged to consider an appeal made on that basis, and I'd suggest that in this case the circumstances should be reasonably compelling. The person bought a ticket, he lost it briefly when asked to present it, and then found it again whilst on the train, and showed it to a member of staff. I'd be inclined not to pay if all appeals are rejected and say, take me to court and let a magistrate decide, although I accept that many others would rather not have the hassle.

Wording below:-

(3) The grounds on which an appeal under this regulation may be made are that—

(a)the penalty fare was not charged in accordance with the requirements of these Regulations;

(b)the appellant is not the person liable for the payment of the penalty fare;

(c)the appellant owns a season ticket valid for the journey in question but was not in possession of the season ticket at the time the penalty fare was charged; or

(d)there are compelling reasons why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare.

Edit: Just seen @furlong has made the same point, albeit more succinctly!

 

[Alex C.]

I'm not sure of that. One of the valid reasons that can be given for an appeal is where there are "compelling reasons", which I think comes as close as you can without using the word discretion, which clearly can't be used from a legal perspective.

So the operator is obliged to consider an appeal made on that basis, and I'd suggest that in this case the circumstances should be reasonably compelling. The person bought a ticket, he lost it briefly when asked to present it, and then found it again whilst on the train, and showed it to a member of staff. I'd be inclined not to pay if all appeals are rejected and say, take me to court and let a magistrate decide, although I accept that many others would rather not have the hassle.

Wording below:-

(3) The grounds on which an appeal under this regulation may be made are that—

(a)the penalty fare was not charged in accordance with the requirements of these Regulations;

(b)the appellant is not the person liable for the payment of the penalty fare;

(c)the appellant owns a season ticket valid for the journey in question but was not in possession of the season ticket at the time the penalty fare was charged; or

(d)there are compelling reasons why, in the particular circumstances of the case, the appellant should not be liable to pay the penalty fare.

Edit: Just seen @furlong has made the same point, albeit more succinctly!

The operator wouldn't be able to pursue a prosecution if an appeal has been made so any claim would go through the civil courts (small claims track). The operator won't be able to recover costs beyond the issuing fee so it's not something they're likely to do and the worst outcome of letting it get that far would be a county court judgement against you - which you can pay within 28 days to prevent it appearing on your credit report - unlike with the prosecution route of risking a criminal record, there is very little downside to letting the train company take you to court in these circumstances, other than potentially having to pay the court fee if you lose.

That's if they even take you to court - I haven't seen any examples of penalty fares which have been appealed unsuccessfully ending up in court but others may have done?

 

[Sultan]

Can case law be used here? Searching online (not for long I add), I can't find anything that specifically says case law is only for criminal courts. If it was available in civil courts, then this would be a great example of creating a precedence when a traveler, who can prove that they have purchased a valid ticket before boarding a train (whether that be by a receipt, or the fact they used it at a gateline), has inadvertently lost it prior to an on-board ticket inspection, received a penalty fare, and has since located it (before alighting the train?), proving they did in fact have a valid ticket and had no intention of defrauding the Train company by making a journey without discharging their responsibility to pay for such journey. Is the penalty fare system designed to prevent fraudulent travel, or is it intended to additionally ensure passengers have a ticket ready for inspection at all times, and penalise them if they do not?

It seems very unfair to have to prove your innocence each and every time when circumstances such as the OP has experienced must happen a lot. Case law could provide a list of circumstances for the Appeals department to adhere to (when it comes to reasonable reasons for non production of a ticket) rather than appearing to make it up every time.

But if it can't, then the law is (possibly) an ass!

Hope you get it resolved.

 

[Llanigraham]

Cases at a Magistrates Court do not form and have never formed precedence.

 

[Fawkes Cat]

Can case law be used here? Searching online (not for long I add), I can't find anything that specifically says case law is only for criminal courts.

Yes, as I understand it, the idea of case law applies in both civil and criminal law. But as @Llanigraham says

Cases at a Magistrates Court do not form and have never formed precedence.

As I understand it, lower courts determine cases on the basis of their facts and the law, which is taken to be clear. If the convicted party doesn't like the outcome (i.e. that they lost) they can appeal: if it's an appeal on the facts that's not going to change the law (just what the law is applied to in their case), but an appeal against the interpretation of the law might change what the law is understood to mean: that's the sort of thing which could become case law. But as @Llanigraham says, Magistrate's Courts don't set precedent and if I remember rightly, I don't think that the Crown Court (which I think would first hear an appeal from the magistrates) does either. It's only if you end up at the Court of Appeal or the Supreme Court that you might set a precedent

It seems very unfair to have to prove your innocence each and every time when circumstances such as the OP has experienced must happen a lot.

I'm not sure this logic works. If it's the same person having to 'prove [their] innocence each and every time' they might indeed feel that to do so was something of an imposition - but against that I can imagine the railway asking why Mx Z is so persistently coming to the railway's attention and whether their story of always losing their train ticket only to find it again once they have a penalty fare is indeed true. If on the other hand it's different people who are having to prove their innocence each and every time then no one passenger is going to be facing much of an imposition - they will have the issue once, may perhaps be let off, and will hopefully learn the lesson that it's really quite a good idea not to mislay your train ticket.

 

[HurdyGurdy]

I have no reason to disbelieve the OP's version of events, but if "I couldn't produce a ticket when required to do so, but have now found it" became a compelling reason for an appeal against a PF to be successful, it would open the door to scams where the same paper ticket was effectively used twice. Once by a person using it to travel on the railway and then again by another or the same person appealing a PF.

Once established, I suggest it would not take very long for such a loophole to be exploited by those who were intent on evading their fares.

If on the other hand it's different people who are having to prove their innocence each and every time then no one passenger is going to be facing much of an imposition - they will have the issue once, may perhaps be let off, and will hopefully learn the lesson that it's really quite a good idea not to mislay your train ticket.

I agree with that.