TfW Delay Repay + 1st class refund. Who is wrong?

[rs98]

I travelled with TfW on their Cardiff-Manchester route and encountered two issues at once:

1. I had a 1st class ticket booked for one of the mk4 sets but this was replaced by a 197 which have no 1st class seats
2. The train was delayed >60 minutes on arrival.

As I have before, I sent off an email to customer relations about the 1st class issue, where they are usually happy to refund the difference between a 1st class and standard class ticket. I also submitted delay repay.

The delay repay was approved quickly and gave the 100% compensation as expected, however they have now emailed back about the 1st class refund, which they have declined for the following reason:

Under the terms of the National Rail Conditions of Travel, as we have failed to provide the advertised 1st class facilities on your train, you would usually be entitled to compensation and this is up to the cost of your ticket. I have checked our systems and can see you have already claimed for your delay (ref: TFW-xxxxxxxxxx) and you were awarded 100% of your ticket cost as delay compensation so I am unable to offer any more for this journey. I am sorry for any disappointment this may cause.

== Doublepost prevention - post automatically merged: Monday at 17:06 ==

Under NRCoT Part F, section 31, 1st class not provided is described as a refund and not compensation, and conversely under section 32 delay repay is described as compensation. I cannot see that these interact, and in fact section 31 states that

If you have a first class Ticket and the train service you use is shown as offering first class accommodation at www.nationalrail.co.uk, but when you travel first class accommodation is not provided or is otherwise fully occupied, you may claim a refund. The minimum refund to which you will be entitled will be the difference between the price of the first class Ticket purchased and the cheapest valid standard class walk-up fare available on the service you used. You must contact the Train Company you travelled with to notify them of your claim within 28 days of the date that you travelled.

This minimum level of compensation shouldn't be declined even if I've also been compensated for a delay, does that make sense or am I reading this wrong somehow? I'm just working out if I should go back to their customer services about this or if they're within their rights to deny a refund that I am told I may claim by NRCoT? Thanks!!

 

[Bletchleyite]

They are correct. You cannot ever receive back more than you paid in a Delay Repay claim or a partial refund for non provision of service. You paid £0 for the journey in the end.

The only way you can get money in excess of the price paid is in incidental costs such as where a taxi or hotel accommodation were required, in this case it would be on top of the delay repay/partial refund claim.

 

[rs98]

And finally, I do understand that Section 32 refers to not being able to recover the same money twice, but in its location in the text, it appears specifically to be referring to the 3 methods in 32.1.1 and not other sections of NRCoT. Is this what they rely on to refuse issuing both the refund and compensation?

They are correct. You cannot ever receive back more than you paid in a Delay Repay claim or a partial refund for non provision of service. You paid £0 for the journey in the end.

The only way you can get money in excess of the price paid is in incidental costs such as where a taxi or hotel accommodation were required, in this case it would be on top of the delay repay/partial refund claim.

In a separate circumstance then, if you have a return ticket and are delayed >120 minutes on the outbound and then are delayed again on the return leg, you wouldn't be able to claim any delay repay on your return leg even though it's intended as _compensation_ to somehow make you whole for the inconvenience caused, and not a refund of your ticket, it just happens to be measured based on how much you paid?

 

[Bletchleyite]

And finally, I do understand that Section 32 refers to not being able to recover the same money twice, but in its location in the text, it appears specifically to be referring to the 3 methods in 32.1.1 and not other sections of NRCoT. Is this what they rely on to refuse issuing both the refund and compensation?

I assume so.

It MIGHT be that there are holes in the wording such that you might succeed with a court case, but I am not qualified to provide legal advice on that sort of matter and it probably wouldn't be worth the cost of it unless you happen to be a hobby litigant i.e. you litigate for enjoyment of winning rather than profit (there are however a couple of those on here! ).

In a separate circumstance then, if you have a return ticket and are delayed >120 minutes on the outbound and then are delayed again on the return leg, you wouldn't be able to claim any delay repay on your return leg even though it's intended as _compensation_ to somehow make you whole for the inconvenience caused, and not a refund of your ticket, it just happens to be measured based on how much you paid?

Correct. It was only ever intended as a compensatory refund, but (probably because of people sueing TOCs and winning) it's now clearly in the NRCoT that you can't claim DR again on a return ticket you've already claimed a 2 hour DR on, and you will only be paid what is left if you do a 2 hour claim on a ticket where any claim has already been paid.

I don't think there is anything particularly unfair about this. It's very clear to me that while these are compensation, they are compensation by way of a partial refund, which is the form most compensation that is paid due to failure to deliver a service takes unless there is consequential loss of some kind (and that is dealt with separately).

 

[NormalPerson7]

In effect, you have received both the first class refund and the delay compensation you are entitled to from Delay Repay.

The first class refund means the value of your ticket for Delay Repay is the standard class price. Then you've been compensated for 100% of the standard class price.

Therefore, I would say you are not entitled to anything else.

 

[AdamWW]

In effect, you have received both the first class refund and the delay compensation you are entitled to from Delay Repay.

The first class refund means the value of your ticket for Delay Repay is the standard class price. Then you've been compensated for 100% of the standard class price.

Therefore, I would say you are not entitled to anything else.

I think that's a very good way of looking at it.

 

[rs98]

That does make sense, thanks all!
I was just confused by the wording saying there was a minimum level of refund which they've then refused, but looking at it as if I could have been refunded first then had delay repay on the standard fare instead is clear to me.

 

[Bletchleyite]

That does make sense, thanks all!
I was just confused by the wording saying there was a minimum level of refund which they've then refused, but looking at it as if I could have been refunded first then had delay repay on the standard fare instead is clear to me.

The simple way of looking at it is just that any contractual compensation (as distinct from out of pocket expenses claimed against a receipt, e.g. a taxi or hotel, which is on top, or anything a Court might award if you sued) is capped at what you paid for the ticket - you cannot contractually receive more back than what you paid unless you had to pay money out of your own pocket on top of the ticket price to complete the journey as the railway failed to provide any means to do so. The wording of the NRCoT is a bit clumsy on that, and so a Court case might succeed (at which point they'd tighten it up so it didn't happen again), but it is clearly the intention that this is the case.

 

[rs98]

The simple way of looking at it is just that any contractual compensation (as distinct from out of pocket expenses claimed against a receipt, e.g. a taxi or hotel, which is on top, or anything a Court might award if you sued) is capped at what you paid for the ticket - you cannot contractually receive more back than what you paid unless you had to pay money out of your own pocket on top of the ticket price to complete the journey as the railway failed to provide any means to do so. The wording of the NRCoT is a bit clumsy on that, and so a Court case might succeed (at which point they'd tighten it up so it didn't happen again), but it is clearly the intention that this is the case.

Thanks, don't fancy the effort of court for a chance at ~£16

 

[SuspectUsual]

The simple way of looking at it is just that any contractual compensation (as distinct from out of pocket expenses claimed against a receipt, e.g. a taxi or hotel, which is on top, or anything a Court might award if you sued) is capped at what you paid for the ticket - you cannot contractually receive more back than what you paid unless you had to pay money out of your own pocket on top of the ticket price to complete the journey as the railway failed to provide any means to do so. The wording of the NRCoT is a bit clumsy on that, and so a Court case might succeed (at which point they'd tighten it up so it didn't happen again), but it is clearly the intention that this is the case.

For clarity, and being a tiny bit pedantic, the cap is the price of the ticket, not what was paid for it.

If you paid partly or wholly in rail travel vouchers, for example, your delay replay entitlement is capped at the face value of the ticket

 

[Bletchleyite]

For clarity, and being a tiny bit pedantic, the cap is the price of the ticket, not what was paid for it.

If you paid partly or wholly in rail travel vouchers, for example, your delay replay entitlement is capped at the face value of the ticket

You still paid for it if you used RTVs, you just paid in RTVs - they are a method of payment a bit like a gift voucher.

 

[SuspectUsual]

You still paid for it if you used RTVs, you just paid in RTVs - they are a method of payment a bit like a gift voucher.

Indeed, but at face value someone could interpret "what you paid for the ticket" differently to "what is printed on the ticket". Just trying to be clear, that's all

 

[Watershed]

The simple way of looking at it is just that any contractual compensation (as distinct from out of pocket expenses claimed against a receipt, e.g. a taxi or hotel, which is on top, or anything a Court might award if you sued) is capped at what you paid for the ticket - you cannot contractually receive more back than what you paid unless you had to pay money out of your own pocket on top of the ticket price to complete the journey as the railway failed to provide any means to do so. The wording of the NRCoT is a bit clumsy on that, and so a Court case might succeed (at which point they'd tighten it up so it didn't happen again), but it is clearly the intention that this is the case.

It's not clumsy - it quite simply doesn't say what you are claiming. It is only delay compensation that is limited to the cost of the ticket. There is no reference to anything else being limited to the cost of the ticket.

You are essentially repeating what some TOCs might like the legal position to be - but the industry has had every opportunity to make this the case whilst amending the NRCoT over recent years, and it hasn't done so.

I also disagree with your analysis on the substance of the matter. Delay Repay is a form of liquidated damages, whereas the downgrade policy is a partial refund - little more than a restatement of what the position would be anyway under the Consumer Rights Act.

The fact that the liquidated damages are calculated by reference to the ticket price and are capped at that, doesn't mean that the TOC's total liability is capped at the cost of the ticket.

Suppose for example that the OP had been seriously burned by hot coffee accidentally spilt on them by catering staff - clearly they would be able to claim for the resultant personal injury damages on top of Delay Repay or any downgrade. In this case, the OP has incurred considerable inconvenience by being both downgraded and delayed and so it's not at all unreasonable that they would get back more than they paid.

Moreover there is nothing in condition 31, which gives the entitlement to a downgrade refund, which qualifies this right if you have also claimed Delay Repay. TfW are just working based on what they would like it to say, not what it actually says.

I would say that as a minimum, this is worth raising as a complaint. If that doesn't result in the OP receiving what they owe, it can be taken further to the Rail Ombudsman. Whilst the Ombudsman is notoriously incompetent and biased towards the TOCs, even just the act of raising a case can often result in a TOC paying what they owe because they want to minimise the number of adverse Ombudsman decisions they're recorded as having.

That also leaves the option of a partial chargeback (or section 75 claim if the ticket was expensive enough) if the OP used TfW to buy the ticket. Clearly there would be no real grounds for disputing a "service not provided" claim since the service provided was in fact standard and not first class. Again, the fact that Delay Repay was paid (contractual liquidated damages) doesn't extinguish the refund claim and hence the ability to make a chargeback.

If another retailer was used it's a bit messier and there's unlikely to be a s75 claim, but it's still worth considering. You'd like to hope that a good retailer would support the OP in this case so that a chargeback wouldn't be necessary.

 

[Bletchleyite]

I also disagree with your analysis on the substance of the matter. Delay Repay is a form of liquidated damages, whereas the downgrade policy is a partial refund - little more than a restatement of what the position would be anyway under the Consumer Rights Act.

So they got a refund to the price of a Standard class ticket then 100% Delay Repay of that, in effect, as someone else said. I see no issue.

It might be that your analysis would stand up in Court but I'd still call it clumsy wording that doesn't reflect the intended contractual policy. If someone does bring a case it will no doubt be quickly fixed to prevent any more.

 

[Watershed]

So they got a refund to the price of a Standard class ticket then 100% Delay Repay of that, in effect, as someone else said. I see no issue.

They claimed Delay Repay. They are now claiming their downgrade refund.

There is nothing in the NRCoT that says one kind of claim can be set off the other, or that the downgrade refund can be refused because Delay Repay to the value of the ticket has been paid out already, or that Delay Repay is to be calculated based on the partially refunded cost.

TfW are just making up reasons to deny the claim.

It might be that your analysis would stand up in Court but I'd still call it clumsy wording that doesn't reflect the intended contractual policy. If someone does bring a case it will no doubt be quickly fixed to prevent any more.

It's just a case of a TOC making up what they'd like the rules to be. There's no industry wide policy that says this is the case.

If it is "fixed" - so what? That has no effect on the OP's claim and it's certainly not a reason to discourage anyone from pursuing a valid claim.

 

[tutacre]

If the first class ticket has been refunded - then it surely does not exist as far as the customer is concerned - the contract has essentially been voided / superseded by retrospective payment of the difference and a replacement standard class ticket - albeit after the fact.

If a ticket is evidence of a contract - then in England & Wales, the legal concept of "consideration" is required. If the "consideration" - i.e. money, has been returned to the customer in accordance with the contractual conditions - I am struggling to see how there is any ongoing liability - the contract can only survive if there is some form of residual consideration. The fact that some of that remaining consideration is then fully offset to obtain a standard class ticket would not appear to change the facts - that the first class ticket contract has become void.

Not a lawyer by any means - but I think it is a significant and "ambitious" stretch to claim that you can get a refund of the difference between First and Standard AND delay repay on the First Class element. I don't think the County Court would look too favourably on that claim at all, and would probably be rather annoyed it had been brought.

 

[Tetchytyke]

In principle, they are separate things.

Delay Repay is compensation and this is paid according to the price of the ticket.

A refund for a lack of first class accommodation is a refund of the difference between the standard class fare and the first class fare.

If they'd processed the 1st class refund first, you would have had the refund. But then the Delay Repay calculation would then have been based on the standard class fare, not the first class fare. So you'd have had (for example) 20% of what you initially paid back as a refund and then Delay Repay would have been based on the remaining 80%.

So the net effect in this case is the same.

 

[rs98]

They claimed Delay Repay. They are now claiming their downgrade refund.

There is nothing in the NRCoT that says one kind of claim can be set off the other, or that the downgrade refund can be refused because Delay Repay to the value of the ticket has been paid out already, or that Delay Repay is to be calculated based on the partially refunded cost.

TfW are just making up reasons to deny the claim.


It's just a case of a TOC making up what they'd like the rules to be. There's no industry wide policy that says this is the case.

If it is "fixed" - so what? That has no effect on the OP's claim and it's certainly not a reason to discourage anyone from pursuing a valid claim.

This is the interpretation which seemed to make sense to me from my reading of NRCoT, and while I would be interested in seeing their response to a further email back, I don't think I would be interested in taking it to the ombudsman. Their response calling it "compensation" rather than a partial refund as on their own website was what prompted me to look at NRCoT at all.

First Class tickets​

If you’ve purchased a First Class ticket for one of our First Class train services and (for any reason) that service was not provided, you can claim a refund.

You’ll be entitled to a refund of the difference between the First Class and Standard Class fare.

I would also prefer not to annoy the people at TfW ticketing, as I think their interpretation of 1st class refunds is actually already more generous than what is required by NRCoT. NRCoT says that the refund is a minimum of the difference between the ticket price and the walk-up fare. I can imagine if I annoy them by pursuing it (and since I do book directly with them so the tickets are all associated with my account) they might be less inclined to this generous interpretation in future:

A first class advance single NWP-MAN can often be as little as £43.60 and they seem to tend to refund the difference between that and the cheapest standard class advance single £27.20, paying out £16.40 - even when the standard class advance singles at the time of booking are often the £38.10 tickets. i.e. you've effectively spent £6.50 on an upgrade and get back £16.40 when they fail to provide it.

As far as I can see on brfares, there isn't a TfW only walk up fare, the only open ticket on that route is the Anytime Day Single priced at £89.90 (valid on TfW or XC via Birmingham) which is significantly more than advance singles are even right up until departure (advance singles on all the departures this afternoon are still at £49 or less).

== Doublepost prevention - post automatically merged: Tuesday at 14:26 ==

In principle, they are separate things.

Delay Repay is compensation and this is paid according to the price of the ticket.

A refund for a lack of first class accommodation is a refund of the difference between the standard class fare and the first class fare.

If they'd processed the 1st class refund first, you would have had the refund. But then the Delay Repay calculation would then have been based on the standard class fare, not the first class fare. So you'd have had (for example) 20% of what you initially paid back as a refund and then Delay Repay would have been based on the remaining 80%.

So the net effect in this case is the same.

Would it have been on the standard class fare though? If I'd waited for the 1st class refund, it had come through within 28 days, and then submitted Delay Repay with my tickets (which I don't imagine are actually voided on the system?) i would have imagined the automated Delay Repay systems would have just approved my claim based on the face value of my ticket.

Whether they should do that or not, I'm not sure. I still do think the wording of NRCoT implies that they should, but I can definitely understand how it wasn't the intention.

 

[Watershed]

If the first class ticket has been refunded - then it surely does not exist as far as the customer is concerned - the contract has essentially been voided / superseded by retrospective payment of the difference and a replacement standard class ticket - albeit after the fact.

The contract isn't voided any more than it would be by payment of 100% of the ticket's value in Delay Repay. The customer has just received a partial refund as is their contractual right. It is also a well-recognised mechanism for rectifying non-compliant goods or services in the Consumer Rights Act for example.

If a ticket is evidence of a contract - then in England & Wales, the legal concept of "consideration" is required. If the "consideration" - i.e. money, has been returned to the customer in accordance with the contractual conditions - I am struggling to see how there is any ongoing liability - the contract can only survive if there is some form of residual consideration. The fact that some of that remaining consideration is then fully offset to obtain a standard class ticket would not appear to change the facts - that the first class ticket contract has become void.

Not a lawyer by any means

The ticket was purchased and doesn't cease to exist just because a partial refund was paid.

but I think it is a significant and "ambitious" stretch to claim that you can get a refund of the difference between First and Standard AND delay repay on the First Class element.

Whether or not something feels 'morally' right or fair doesn't change the legal position. The OP has an unqualified right to a partial refund. TfW don't have a defence, they have just made up the bit about 100% Delay Repay being the end of the matter.

I don't think the County Court would look too favourably on that claim at all, and would probably be rather annoyed it had been brought.

Again, judges are not interested in morals, they deal in facts. Regardless of whether they agree with a claim they have to award what is legally due. The only thing where there is any leeway is in costs, but there needs to be evidence of "unreasonable" behaviour for any adverse costs to be awarded against an otherwise successful party.

There is plenty of case law to the effect that losing a case does not, in itself, amount to evidence of unreasonable behaviour. The kind of things that count as unreasonable are making frivolous interim applications, disregarding court orders or falsifying evidence for example.

== Doublepost prevention - post automatically merged: Yesterday at 13:48 ==

I would also prefer not to annoy the people at TfW ticketing, as I think their interpretation of 1st class refunds is actually already more generous than what is required by NRCoT. NRCoT says that the refund is a minimum of the difference between the ticket price and the walk-up fare. I can imagine if I annoy them by pursuing it (and since I do book directly with them so the tickets are all associated with my account) they might be less inclined to this generous interpretation in future:

I can understand where you're coming from, but I don't think you have reason to worry. Whilst it is correct that on paper the NRCoT states the downgrade refund is calculated based on the walk-up standard fare, I have never seen a TOC try to calculate it that way.

It would clearly be absurd for them to say that you're not entitled to a refund because a walk-up standard class fare would have been more expensive, when you didn't benefit from the flexibility a walk-up fare would have offered. So TOCs generally approach it sensibly by using the equivalent tier of standard class Advance.

Any TOC that tried to exclude a claim based on the strict wording of the NRCoT rather than a purposive interpretation would probably be liable for a similar price reduction (i.e. partial refund) under the Consumer Rights Act anyway. So there would be no point in them trying to be pernickity in this way.

A first class advance single NWP-MAN can often be as little as £43.60 and they seem to tend to refund the difference between that and the cheapest standard class advance single £27.20, paying out £16.40 - even when the standard class advance singles at the time of booking are often the £38.10 tickets. i.e. you've effectively spent £6.50 on an upgrade and get back £16.40 when they fail to provide it.

As far as I can see on brfares, there isn't a TfW only walk up fare, the only open ticket on that route is the Anytime Day Single priced at £89.90 (valid on TfW or XC via Birmingham) which is significantly more than advance singles are even right up until departure (advance singles on all the departures this afternoon are still at £49 or less).

Of course TfW don't know what the equivalent standard class Advance would have cost at the time of booking. So all they can do is to compare it to the equivalent tier.

FYI a Bristol to Manchester "via Hereford" Anytime Single is significantly cheaper at £49.50. An Anytime Return is £99 so still cheaper than a Newport to Manchester Off-Peak Return (which is valid at any time).

 

[Amaranthe]

(Mods feel free to split if this is too off-topic in relation to the OP).

I wonder how TfW would deal with the following scenarios...

1) This one actually happened a couple of years ago while I was on a 14 day 1ST ALR... The 10:53 Cardiff to Manchester (Mk4) only made it as far as Newport before being cancelled due to a fault with the doors. As my reason for doing that trip was to sample the Mk4 dining I went to the local Spoons for a while before then catching the next Mk4 ex Newport at 13:08. To my surprise several other 1st class passengers from the 10:53 had had exactly the same idea. Now obviously they would have been entitled to some sort of delay repay but given there was a 12:08 service from Newport to Manchester (albeit a 197) and let's say for arguments sake they were travelling on a 1st class off-peak return, would they be entitled to 50% delay repay (60 mins delay) on the return ticket cost + compensation for no 1st class being available on the 12:08 or could they claim 100% delay repay for the actual 120 minute delay? My doubt with the latter is they would in effect be "self-delaying".

2) This is a hypothetical one... Let's say I had a 1st class advance single for the 12:30 Manchester Piccadilly - Cardiff and I turn up at Manchester and find it has been viced for a 197 and I then contact TfW social media and ask if I can defer travel to the 14:30 instead...
a) How likely are they to say yes?
b) If they said yes would I be eligible for delay repay? My thinking would again be no as this would surely be a "self-delay"?