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Penalty fare Appeal and conditions of carriage question

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ten7

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(I think we missed the jump in this thread from 2nd appeal to 3rd appeal? Perhaps you'd share the actual wording of the 3rd appeal, as that response suggests the relevant point was not argued, or was ignored. The argument was that an incorrect "undiscounted fare" was used.)
Tried copy and paste but not working. I definitely quoted regulation 9(6) word for word and also explained it though. They just chose to ignore it.
 
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furlong

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So the appeals panel has ruled that the guidelines "go further" than the regulations that they purport to summarise! But then they chose to use those guidelines in place of the regulations, and threw in a misleading reference to the government, when it is the train companies, not the government, apparently trying to persuade people that they say things that aren't actually there. Self-evidently the guidelines need to be withdrawn and clarified and other judgements made by the panel with reference to the guidelines might be flawed.
 
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ten7

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So the appeals panel has ruled that the guidelines "go further" than the regulations that they purport to summarise! But then they chose to use those guidelines in place of the regulations, and threw in a misleading reference to the government, when it is the train companies, not the government, apparently trying to persuade people that they say things that aren't actually there. Self-evidently the guidelines need to be withdrawn and clarified and other judgements made by the panel with reference to the guidelines might be flawed.
Furthermore this “Independent Appeals Panel” looks fishy to me. In what way exactly are they “independent”? I strongly suspect that Penalty Services is owned by one of the train companies.
 

TurbostarFan

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This link sums it up: https://www.appealservice.co.uk/IndependentAppealsPanel

Basically it lists the names of people on the panel and explains that they were recruited by statutory watchdog organisations, not TOCs. This particular case however is extremely worrying in my opinion. I hope that London Travelwatch ask for this appeal to be reconsidered, failing that the only option would be a County Court claim.
 

ten7

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This is the full wording of the letter.

I understand you are unhappy with the outcome of your second appeal and would advise that where a final case review is requested, the paperwork is passed to the Independent Appeals Panel and the appeal is judged again from the beginning.
The IAP considers an appeal in two stages. Firstly, the panel examine the issuing of the penalty fare to ensure that it complies with the Railways (PenaltyFares) Regulations 2018 and that the correct procedure was followed by the Train Operating Company and subsequently at the first two appeal stages. The panel then determine whether there are compelling reasons presented in the appeal which would justify upholdig the appeal in accordance with s16(3)d of the Regulations.
You were issued with a penalty fare having been found to be travelling without a valid ticket for that section of your journey. As such you were in breach of the National Rail Conditions of Travel. The issuing of a PF in these circumstances was appropriate. Your appeal then rests on your claim that the PF has been calculated incorrectly thus rendering the PF in breach of the Regulations and should be quashed.
Enquiries by the panel have found the calculation to be correct. The Regulations quoted by you in your third appeal refer to the "full single fare applicable". This is an undiscounted fare. Section 1.3 of the acompanying Penalty Fares Guidelines 2018 go further and state The amount of any Penalty Fare is £20.00 or twice the cost of an undiscounted full Single, applicable to the person travelling, from the station you started your train journey to the next station served by the train, whichever is greater. Although your comments about the penalty fare calculation have been noted, the value of a National Rail penalty fare is set by the government, not by the rail operator.
The panel therefore conclude that the issuing of the PF was correct and the Regulations followed. The panel have then considered whether other compelling reasons are present in this case upon which to uphold the appeal despite the PF being appropriate at the outset. The panel do not find any mitigating circumstances which would justify upholding the appeal and it is therefore denied we regret to advise that your appeal has been unsuccessful and that this concludes the appeal process.
The procedures laid down by the Government have been followed during the assessment of this appeal. Although I acknowledge your disappointment with the outcome, I hope the information provided will help you to appreciate our position and the need to adhere to set processes.
There is no higher tier of appeal than the Independent Appeals Panel, but if you believe there has been a failure to process your appeal correctly, you may wish to refer your case in writing to:- London TravelWatch, Europoint, 5-11 Lavington Street, London, SE1 0NZ; via the web at www.londontravelwatch.org.uk; or by e-mailing [email protected].
London TravelWatch (LTW) is an independent statutory body set up by Parliament to consider complaints and suggestions from rail users, and make recommendations about services. Should you choose to contact them, you will be advised by LTW whether further representation will be made on your behalf with regard to your case.
Meanwhile, I regret to advise that no more correspondence will be entered into by PSL or the Independent Appeals Panel unless it is requested by LTW as part of a procedural matter.
 

furlong

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The appeals process simply isn't designed to handle this sort of issue of interpretation: unlike in a court situation, you were not given access to the other side's case and so unable to dispute it.
So that part moves into the domain of London Travelwatch.

Meanwhile other people who appeal in the future on similar grounds, now know that they also need to address these extra points that the train company (presumably) raised without giving you the opportunity to answer.

Reference to the guidelines as justification - while stating that they extend the regulations - does strike me as a significant irregularity for London Travelwatch to investigate.

I'd have thought the key question for the panel was: from 6(b) - In what way was reference made to the day and time of the journey when determining "the full single fare applicable", there being only one such fare in any specific circumstances, and with, in absence of further definitions, presumably, each of the individual words taking their normal dictionary meaning?
 

furlong

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In general terms, the argument is very simple. The penalty is that you have to pay double the fare. If you also have to pay a higher fare than you otherwise would have had to pay (accepting that you can't take advantage of discount schemes such as railcards in these circumstances), then that's in effect imposing two separate penalties, and so unlikely to be what parliament intended. If the intention had been to stack two penalties then that would have been stated explicitly in the regulations, leaving no doubt.
 
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furlong

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A counter argument is: When we say 'full fare' we mean both the undiscounted (railcards) and unrestricted (time of travel) fare - what used to be called the Open fare - now the Anytime fare.

However, as its new name suggests, it can be used at "any time" and therefore using it blindly in all circumstances necessarily cannot be taking into account the day and time of the actual journey, which the regulations state is an absolute requirement in determining applicability. Furthermore, other walk-up fares exist (in general) called 'Off-Peak' and 'Super Off-Peak' with validities that depend upon the day and time.
 
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some bloke

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The responses seem extremely odd. To add to/restate the points made by @furlong and @ForTheLoveOf:

Charging a penalty fare based on the fare applicable to a different day and time is no more legitimate under the Regulations than basing it on the fare applicable to a different age group or a different route.

Secondly, if the appeals body were right, then people in relevant positions would interpret the phrase in the same way. If you write to the train company and ask "I'm travelling on Sunday. Please advise what is the full single fare applicable", it seems highly unlikely they would say it's the anytime fare. If you were to ask, without mentioning Sunday, "what is the full single fare applicable", they would, we might expect, answer "it depends on the day and time". That might help show that the appeal decision is not sensible. But it should not be needed, as 9.6 is so clear. Whether there is ever, elsewhere, a use of the words "full" or "undiscounted" to mean Anytime and "discounted" to mean "not Anytime" is not something I can comment on.

Thirdly, there is the fact that last year the statutory instrument changed the wording. It is hard to see why they would do that, and use the words they did, if they meant anything other than what the words appear to mean about date, time and route. So if you haven't already made this point it might be worth mentioning, though again it should not really be needed.
 
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ten7

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I’ve just kept it simple to avoid any confusion and explained the regulation 9(6) which I believe was ignored.
 

ForTheLoveOf

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I’ve just kept it simple to avoid any confusion and explained the regulation 9(6) which I believe was ignored.
So did you include the part about the first stage appeal response having been out of time?
 

ten7

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London Travelwatch upheld Penalty Services argument. They contacted Penalty Services and said they were correct to charge twice the anytime single fare. Apparently the only factor which can be considered is age.
 

ForTheLoveOf

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I checked and it was all within time.
I thought you provided us with a timeline that showed they were out of time?

London Travelwatch upheld Penalty Services argument. They contacted Penalty Services and said they were correct to charge twice the anytime single fare. Apparently the only factor which can be considered is age.
You've already had a response this fast?

Are LTW and PS just completely illiterate? It is plainly obvious that the Regulations state it is the "full single fare applicable", and factors such as the route, date and time of the journey are explicitly said to have to be considered.

I suspect that taking Court action is going to be your only hope of getting back the money you are owed.
 

ten7

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I thought you provided us with a timeline that showed they were out of time?


You've already had a response this fast?

Are LTW and PS just completely illiterate? It is plainly obvious that the Regulations state it is the "full single fare applicable", and factors such as the route, date and time of the journey are explicitly said to have to be considered.

I suspect that taking Court action is going to be your only hope of getting back the money you are owed.

I think someone did in another similar thread?

Court action is risky though as it’s a lot of time and effort and if I lose, I’ll have to pay the court fees as well.

Both are using the penalty fares guidelines and not the regulations.
 

ForTheLoveOf

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I think someone did in another similar thread?

Court action is risky though as it’s a lot of time and effort and if I lose, I’ll have to pay the court fees as well.

Both are using the penalty fares guidelines and not the regulations.
Ah right, sorry, I must've mixed cases up.

The Court fees are not very expensive (£25 to begin a claim), and it is really not that complex. I have gone through the process a number of times and whilst it is obviously not on the same sort of spectrum as merely making an appeal response, it is nowhere near as difficult as a lot of people think.

It's unacceptable that they are using the Guidelines rather than the Regulations but this really is an area where little that can be achieved without a substantial cost.
 

ten7

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Ah right, sorry, I must've mixed cases up.

The Court fees are not very expensive (£25 to begin a claim), and it is really not that complex. I have gone through the process a number of times and whilst it is obviously not on the same sort of spectrum as merely making an appeal response, it is nowhere near as difficult as a lot of people think.

It's unacceptable that they are using the Guidelines rather than the Regulations but this really is an area where little that can be achieved without a substantial cost.
And I ask myself whether it’s worth the time, effort and £25 to take the case to court for the sake of recovering £30 or so. I guess that’s what these train companies rely on - they know most people won’t bother.
 

furlong

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So the answer you're getting suggests they might have a policy that breaches the regulations, so you can continue to escalate it - but you need to think more carefully about the way to phrase things to get the right answers. A reply that suggests they ignore part of the regulations can be followed up with an explicit question similar to the one I suggested earlier. They are required to consider certain things, so any policy that says in effect 'it is always anytime day single' looks like a breach.
 

furlong

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When writing these things, try to put yourself into their shoes and think about what range of replies they might legitimately send, then adjust what you write to try to eliminate the replies that won't help.
 

ForTheLoveOf

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And I ask myself whether it’s worth the time, effort and £25 to take the case to court for the sake of recovering £30 or so. I guess that’s what these train companies rely on - they know most people won’t bother.
It's up to you of course - if it were me I'd undoubtedly do it. You should also recover the £25, plus all other Court fees, plus your costs of attending Court, if you win (which, in these circumstances, I would have seen as almost certain).
 

furlong

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So your next reply could be trying to box them in and getting them to admit explicitly that they do not take into account the day and time of the journey. If you get such a reply, then you point out that the regulations say otherwise, and ask them to reconcile the two. If they can't, then you can escalate to the next level up the chain. (Ultimately towards a case that the train company is acting in breach of its franchise agreement.)
 

ten7

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So your next reply could be trying to box them in and getting them to admit explicitly that they do not take into account the day and time of the journey. If you get such a reply, then you point out that the regulations say otherwise, and ask them to reconcile the two. If they can't, then you can escalate to the next level up the chain. (Ultimately towards a case that the train company is acting in breach of its franchise agreement.)
I’d do that directly with GTR.
 

ten7

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Could you please say what their exact words were?

Wording below

“I realise this will be disappointing but before I wrote to you I contacted Penalty Services as I couldn’t understand how you’d boarded the train at Kings Cross without a ticket. I was advised this was done as you held a zones 1-4 travelcard and, as the ticket barrier doesn’t know the journey being taken will allow you to through. Because of this, the Penalty Fare Notice was correctly issued.


You also mentioned that you’d been charged the wrong amount for the Penalty Fare Notice. However, I can only re-iterate what was said in the Third Appeal Outcome letter. This being that the balance is either £20 or twice the undiscounted full fare for the journey being taken. While it’s true that age is taken into consideration there’s been no evidence supplied to indicate that you’re under the age of 16 which would indicate that an adult fare should be charged. Also, though you had a season ticket which does give the same discount as a Network Railcard, when calculating the balance owed for a Penalty Fare Notice the discount isn’t taken into consideration. Therefore, as the single fare from Kings Cross to Stevenage is £15.10 you were charged the correct amount.


Given the above, both Great Northern and Penalty Services have acted correctly and London TravelWatch can find no grounds for them to offer you a refund of the amount paid when the Penalty Fare Notice was issued.”
 

some bloke

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twice the undiscounted full fare for the journey being taken.
You might pursue a clarification from LTW.

A possible first reply:

"I am unable to understand the idea that "the undiscounted full fare for the journey being taken" could be the cost of an Anytime ticket, when this was a Sunday.

Please respond to my main point, that the Regulations say the date and time need to be considered in determining the basis of the Penalty Fare."
Reply on behalf of the Independent Appeals Panel said:
no more correspondence will be entered into by PSL or the Independent Appeals Panel unless it is requested by LTW as part of a procedural matter.
LTW present themselves as the "voice of London's transport users" who do "evidence-based advocacy". Maybe they will "request" more correspondence if LTW can't find justification for their position in the Regulations - implying the appeals panel procedure was based on a misconception.

Perhaps either might respond that that is a substantive rather than procedural matter. In any case, you could copy GTR into the correspondence with LTW, hopefully showing that LTW can't support their own position.
I couldn’t understand how you’d boarded the train at Kings Cross without a ticket. I was advised this was done you held a zones 1-4 travelcard
You could say to them, "Please clarify your statement that I boarded without a ticket". But it might well be better to concentrate on the fact that their argument does not address your main point.

Possible advantages of what might be several rounds of trying to clarify with LTW are that they might view themselves as having a duty to respond/clarify, and that they may respond quickly.

If that fails:
London Travel Watch said:
If you are still not happy with how we have handled your case,

[ie after trying again]

you can also:
  • contact London TravelWatch's Chief Executive outlining the reasons for your dissatisfaction. The Chief Executive will investigate to ensure the internal processes have been followed but will not reinvestigate the original complaint.
  • contact the Local Government Ombudsman. Its duty is to discover whether you have suffered injustice as a result of poor case handling by London TravelWatch. It does so without taking sides but does not investigate the original complaint. If the Ombudsman finds that London TravelWatch has done something wrong, it may make a recommendation about how the matter should be put right, which we will usually accept.
https://www.londontravelwatch.org.uk/complaints/appealing_london_travelwatch

There's also the London Assembly, which funds them.
 
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ten7

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Reply from LTW

“The £15.10 you were charged is the “full single fare” for the journey between Kings Cross and Stevenage for any day of the week and at any time. Though there are other fares for this journey, which includes off-peak tickets, these wouldn’t be the fares used when calculating the amount owed for a Penalty Fare Notice. Therefore, the regulation you’ve quoted has been correctly applied on this occasion”
 

some bloke

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You could write back:

..............

"I am sorry to say that "these wouldn't be the fares used" is a conclusion, rather than the explanation I seek of how it was reached.

Please explain why LTW interprets the Regulations in that way, including its view as to the meaning of:

"In this regulation “the full single fare applicable” is to be determined by reference to ...(b) the day and time of the journey that person is making, has made or intends to make, as the case may be". "
 
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ten7

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You could write back:

..............

"I am sorry to say that "these wouldn't be the fares used" is a conclusion, rather than the explanation I seek of how it was reached.

Please explain why LTW interprets the Regulations in that way, including its view as to the meaning of:

"In this regulation “the full single fare applicable” is to be determined by reference to ...(b) the day and time of the journey that person is making, has made or intends to make, as the case may be". "
Already asked that - I asked whether the day and time is irrelevant and if so, how regulation 9(6) should be interpreted. They just dodged the question.
 

Hadders

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Perhaps you should get your MP involved.
 
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