You live and learn, thank you. I handled a lot of these (and FOI requests) at one time... Even more devastating for their finances then... and if they miss the targets get on to the ICO immediately.
-
Our booking engine at tickets.railforums.co.uk (powered by TrainSplit) helps support the running of the forum with every ticket purchase! Find out more and ask any questions/give us feedback in this thread!
Advice Only for Greater Anglia - Delay Repay Fraud
- Thread starter lufcjack
- Start date
- Status
Sponsor Post - registered members do not see these adverts; click here to register, or click here to log in
R
RailUK Forums
It's pretty much the opposite way around to that - fees can now only be charged from the second request onwards, for requests which are vexatious etc. in their frequency or nature.
Whilst there are fixed timescales laid down in the law (1 month by default, extendable by up to 2 months), these are much more flexible in practice and you are likely to have limited recourse if they are breached, so long as the request is eventually complied with.
They would probably just deal with the requests in the order they were received, and develop a quicker system for disclosing the data. They might not meet the GDPR mandated timescales on all requests but I think they would be unlikely to face any significant liability in the circumstances.
I certainly get the sentiment you are expressing. This is one of those cases where - perhaps like with the delays and claims that underlie all of this - one side has done something wrong, and then the other side takes action to right that wrong, but eventually goes too far in "righting" it.
Of course when it comes to "battles" between TOCs and passengers, I think we all know who ends up "winning" (by and large).
AlterEgo
Veteran Member
No different to any other punter caught foul of the rules doing an out of court settlement. The difference here is the allegation of dishonesty.
I’m sure you can see how “only paying back the amount you defrauded in the first place when you get caught” isn’t a workable policy.
I would imagine in part that it depends how long the delay is and what those requesting the info do.... A few stories along the lines of "Having heard what GA have done to others with respect to Delay Repay l requested details of what info they had on me and X months later (Y months after the legal deadline) l've had nothing" in the national media and there will be political interest. That would just bring GA another world of pain....
Well except the amount over the defrauded figure coincidentally, l'm sure, happens to be the same as the legitimately claimed Delay Repay which TOCs seem to hate paying out.... I'm sure that the media wouldn't miss that.... "I inadvertently claimed £10 in error and they stripped me of hundreds of pounds that l claimed legitimately"....
AlterEgo
Veteran Member
“inadvertent” and “just £10”, hehe, “in error”.
This forum. Never change. Always a smile!
The people in this threat mostly got caught bang to rights - in the words of the most recent poster, “hands up, I did it”.
Do have a stab at what you think a fair figure would be for an out of court settlement for people caught defrauding the Delay Repay system by making dishonest claims. I think “repaying the last year’s delay repay” seems a fair starting point.
Tazi Hupefi
Member
And for those thinking about a SAR, do remember that personal information can be excluded for disclosure for crime related reasons and associated investigations of criminal activity, where the data controller has good reason to believe disclosure could likely prejudice their proceedings or would reveal information unsuitable for the public domain, e.g. the means and methods they use to conduct an investigation.
Note that this exemption not having to fully release personal information under a SAR is only to the extent that providing the data would be likely to prejudice the crime prevention and taxation purposes it is being used for. A data controller must handle each request on itso own merits, and still has to provide as much personal data as possible. The likelihood of prejudice may reduce over time, e.g. a SAR a year from now may be successful.
Note that this exemption not having to fully release personal information under a SAR is only to the extent that providing the data would be likely to prejudice the crime prevention and taxation purposes it is being used for. A data controller must handle each request on itso own merits, and still has to provide as much personal data as possible. The likelihood of prejudice may reduce over time, e.g. a SAR a year from now may be successful.
Re your first para: spot on but the data controller may be required to justify anything withheld. They certainly don't have carte blanche to exclude stuff on a whim or the possibility that it might be useful in future.
That's your view which you are entitled to. Whether the media would share it as they go after the TOC.... I don't think people in the industry have any idea just how despised many companies operating the railway really are.
AlterEgo
Veteran Member
I don’t think any media outlet will run a story about a self-identifying dishonest person who actually wasn’t taken to court and instead paid money to make the case go away - and make the fraudster out to be the victim. Perhaps the article you’re thinking of might focus on the typical penalties for this sort of crime: having to pay back the illicit money, plus a court fine and/or a low level community order, plus the bonus of having a criminal record. Paying less than £1000 to avoid this when you’re “hands up” caught seems good value to me.
This isn’t strict liability stuff like speeding penalties or failing to show a rail ticket; this is a matter of pure dishonesty. We can all feel sympathy for the first time “offender” who lost their ticket and now has to pay money - of course! But when people start fiddling, multiple times, sorry, but I have very little sympathy. I’d rather TOCs spend their resources whittling out the serially dishonest people rather than giving out edge case Penalty Fares.
ashkeba
Established Member
- Joined
- 13 May 2019
- Messages
- 2,171
The media may be interested in someone who simply cannot remember why they did not catch the next available train and feels unable to defend the claim GA is basing on data it purports to delete but obviously does not. GA has sent a lot of the threatening letters out. Maybe not all of the recipients are guilty. We will see.
I have very little sympathy with the dishonest. I think that the tactics being used here, which give the passenger very little chance to defend themselves and rely on a rather dubious interpretation of the Delay Repay rules, stink.
Exactly. Nothing in the Delay Repay guidance says that you have to catch the next available train. Not does it say that the TOCs have a right to effectively insist that you stay at a station.
AlterEgo
Veteran Member
How would someone defend themselves if the TOC merely passed the case on to the police so they can make an arrest? A solicitor, present at interview, might think that the evidence was so flimsy they advise giving a no comment interview and let the case die on its own demerits.
Given that GA seem to reasonably suspect fraud, would you prefer they contacted the police to potentially conduct arrests and interviews? Or is it fairer to engage them in a civil process, find out a few facts without involving the police, and come to an agreement?
I think your concerns are misplaced and cannot see how GA have done anything objectively wrong.
Based on some of what's been said on here, I am not sure that the suspicion is reasonable, because some of the data underlying those suspicions is data that AGA have declared they do not keep and therefore do not legitimately have access to.
However, as AGA seem to have responded to questions from the recipients of the letters in a way that demonstrates that the recipients have made invalid claims, and settlements have been agreed as a result, I find it difficult to get too excited about abuse of process.
That is a peculiarly inequitable approach - where abuses of process are accepted as a 'cost of doing business' so long as it results in guilty people being 'locked up'. In which case you have to wonder why we bother having the processes and rules in place at all, if there's no cost associated with breaking them.
Some claimants do admit to having made ineligible claims, but I think GA certainly carry a good amount of any blame, for their hilariously ill-defined Delay Repay eligibility criteria, as well as for demanding repayment of claims which are not being questioned. Oh, and for opening up claims that most people would long have thought settled.
Abuse of process generally, not in this specific instance as it appears not to have the force of law here, results in criminal cases being dismissed.
But not very often, and it has to be a pretty serious abuse for the courts to get interested. Questionable use of data - as here - is never going to result in a case being thrown out; at worst, they would be liable for compensation. Hardly a great solace when you've been convicted of fraud.
ashkeba
Established Member
- Joined
- 13 May 2019
- Messages
- 2,171
Do UK courts really allow presentation of evidence obtained or retained illegally? That is what the old gate line taps seem to be.
Be careful what you wish for.
This sorry saga may encourage GA and other TOCS to rewrite the rules so that you only get delay repay when you have presented yourself for travel for the "delayed" service at a station and that can be proven. This may be perceived to be unfair / harsh etc but if Delay Repay has increased very significantly then it is inevitable either or both claims will be scrutinised very carefully and the benefits of the scheme reduced.
We do not know what data in aggregate GA have, and whilst some on this forum have questioned their actions, personally I find it difficult to believe that GA would embark on this course of action unless they had good grounds to do so. That is not to say that there are not individual cases caught up in this which should not have been brought in the first case.
Likewise we do not know for certain the actual actions of those contacted by GA and whether their claims were always legitimate.
We can speculate till the cows come home but whilst this may encourage debate it is often pointless given that individual cases will turn on the "facts" which we may not be privy to.
This sorry saga may encourage GA and other TOCS to rewrite the rules so that you only get delay repay when you have presented yourself for travel for the "delayed" service at a station and that can be proven. This may be perceived to be unfair / harsh etc but if Delay Repay has increased very significantly then it is inevitable either or both claims will be scrutinised very carefully and the benefits of the scheme reduced.
We do not know what data in aggregate GA have, and whilst some on this forum have questioned their actions, personally I find it difficult to believe that GA would embark on this course of action unless they had good grounds to do so. That is not to say that there are not individual cases caught up in this which should not have been brought in the first case.
Likewise we do not know for certain the actual actions of those contacted by GA and whether their claims were always legitimate.
We can speculate till the cows come home but whilst this may encourage debate it is often pointless given that individual cases will turn on the "facts" which we may not be privy to.
Tazi Hupefi
Member
There is no "poisoned well" defence typically in England. The tap data would almost always be permitted to enter evidence, regardless of privacy policies etc.
You are also making an absolutely massive and likely highly misguided assumption that the data is being retained longer than permitted.
Oh, l agree. Hence my rather large caveat.
Fawkes Cat
Established Member
- Joined
- 8 May 2017
- Messages
- 3,013
Reading through this thread, I am becoming increasingly uncomfortable about GA's approach - but I'm not too happy about our analysis either. Surely before we judge GA, we need to consider what they are doing broadly, before going on to the special pleading?
What I mean by this is that the first question is whether on all the facts GA are right to be seeking to recover Delay Repay (DR) that they have paid out. If the answer to that is 'yes', then the question becomes whether GA are entitled to hold and use the facts that they are relying on.
To my first question, I think the answer is 'yes': on the facts it appears that everyone who has shared their position with us exaggerated at least some of their DR claims. And it would seem that everyone has decided that it's worth going for an out of court settlement - essentially repaying all the DR they have received in the last year and a quarter or so, plus an admin fee in the low hundreds of pounds.
But the second question is whether GA are actually entitled to rely on the facts that they have. As I say, this is special pleading - that for some reason, GA should have to ignore something that they know. But in this case, on what we have been told about what data GA say they retain and for how long, the special pleading seems to have some merit. If GA say that they only hold journey details for twelve months, then it's hard to see how GA can now use journey details to challenge someone's travel pattern from 15 months ago.
But before relying on this, more research is needed. Have we correctly understood what GA say about their data retention policies? When do they start counting the 12 months (is it from the day of travel, or the end of the month of travel, or the end of the year of travel? Which year - calendar, tax or accounting?)? Are there exemptions in GDPR/DPA which allow GA to retain and use data despite their declared policies?
On the very limited information that we've seen (maybe half a dozen cases here?) GA seem to have accurately identified dubious cases. But on our current understanding of the law, GA's policies, and the facts, it's by no means clear that GA are entitled to hold the information that they've relied on, and so would be in difficulties were they to have to explain in court why they had concluded that DR should be repaid. So the dilemma that anyone receiving a letter from GA faces is whether to pay up (and resolve the matter at some financial expense) or to see whether they can argue that GA have failed to follow their rules and so eventually solve the matter - but certainly at the expense of some hassle, maybe some stress and (until we understand precisely what GA are allowed to do) some risk of failure.
On what we currently know, GA seem to be just on the dividing line between (on the one hand) enforcing their right not to pay DR when the claimant didn't suffer the delay they have claimed and (on the other) fishing for repayment when there's no particular evidence to think that repayment is due. I'm not happy if GA are fishing - and I would be happier if it was more obvious that GA are relying on properly held facts. On balance, I suspect that GA are in the right (surely they've thought through what information they are allowed to use?) - but it won't take much for me to change my mind.
What I mean by this is that the first question is whether on all the facts GA are right to be seeking to recover Delay Repay (DR) that they have paid out. If the answer to that is 'yes', then the question becomes whether GA are entitled to hold and use the facts that they are relying on.
To my first question, I think the answer is 'yes': on the facts it appears that everyone who has shared their position with us exaggerated at least some of their DR claims. And it would seem that everyone has decided that it's worth going for an out of court settlement - essentially repaying all the DR they have received in the last year and a quarter or so, plus an admin fee in the low hundreds of pounds.
But the second question is whether GA are actually entitled to rely on the facts that they have. As I say, this is special pleading - that for some reason, GA should have to ignore something that they know. But in this case, on what we have been told about what data GA say they retain and for how long, the special pleading seems to have some merit. If GA say that they only hold journey details for twelve months, then it's hard to see how GA can now use journey details to challenge someone's travel pattern from 15 months ago.
But before relying on this, more research is needed. Have we correctly understood what GA say about their data retention policies? When do they start counting the 12 months (is it from the day of travel, or the end of the month of travel, or the end of the year of travel? Which year - calendar, tax or accounting?)? Are there exemptions in GDPR/DPA which allow GA to retain and use data despite their declared policies?
On the very limited information that we've seen (maybe half a dozen cases here?) GA seem to have accurately identified dubious cases. But on our current understanding of the law, GA's policies, and the facts, it's by no means clear that GA are entitled to hold the information that they've relied on, and so would be in difficulties were they to have to explain in court why they had concluded that DR should be repaid. So the dilemma that anyone receiving a letter from GA faces is whether to pay up (and resolve the matter at some financial expense) or to see whether they can argue that GA have failed to follow their rules and so eventually solve the matter - but certainly at the expense of some hassle, maybe some stress and (until we understand precisely what GA are allowed to do) some risk of failure.
On what we currently know, GA seem to be just on the dividing line between (on the one hand) enforcing their right not to pay DR when the claimant didn't suffer the delay they have claimed and (on the other) fishing for repayment when there's no particular evidence to think that repayment is due. I'm not happy if GA are fishing - and I would be happier if it was more obvious that GA are relying on properly held facts. On balance, I suspect that GA are in the right (surely they've thought through what information they are allowed to use?) - but it won't take much for me to change my mind.
Tazi Hupefi
Member
Any notions that data retention or privacy policies are in any way relevant here are a complete red herring. They are totally irrelevant, even more so during a criminal investigation.
The matter really is very simple.
1) People on this forum have admitted to submitting invalid/fraudulent claims DELIBERATELY on X number of occasions.
2) Those same people have also submitted some legitimate claims which the TOC appears to accept are legitimate.
3) The TOC requests an OPTIONAL out of court settlement (a "civil disposal") to prevent the case being referred to the police/prosecution.
I think this particular thread has ran it's course in the absence of further information from the posters, (who largely, appear reasonably content with the outcome they have reached).
jumble
Member
- Joined
- 1 Jul 2011
- Messages
- 1,114
I suspect the court are not going to care less about data being retained over 12 months and will tell the Defence that it is a separate matter and not in their remit and to complain to the ICO
I don't see that this is illegal
It is probably nonsense for any company to claim 12 months anyway as you can be sure that that Data is backed up somewhere so maybe they don't retain them but their outsourced IT company do
Have a look at their policy
The 12 months is for gateline records on their own
A smart prosecutor could draw the courts attention to the suggestion that gate line records are matched against delay repay claims and those delay repay records will have the gateline records appended to them and added to the customer relations database which are then kept for the duration of the franchise.
Last edited:
Anyone who thinks that a prosecution in these circumstances could be dismissed because of touch in/out data being ”retained for too long” has been watching too many American legal TV dramas.
The very most that would happen is a judge tutting slightly and suggesting the defence counsel bring the matter to the attention of the ICO after the case.
The very most that would happen is a judge tutting slightly and suggesting the defence counsel bring the matter to the attention of the ICO after the case.
NSB2017
Member
- Joined
- 12 Jun 2018
- Messages
- 49
I've touched on this before. I think the media would be more interested in how there is a system where people in positions of responsibility/authority/trust etc can throw money at keeping a clean record and/or their job just because they have a few quid.
If anything, reading on here I'm convinced the TOCs give OOC settlements when they should take the person to caught, and there are blatant fraudsters/liars/crooks/etc holding very, very responsible jobs purely because they've hidden their dishonesty with money. It stinks.
Edit: This relates to my thoughts on OOC settlements in general, not my thoughts on this delay repay situation.
It does rather smack of being able to buy your way out of a potential criminal conviction I agree.
I get what's in it for the TOCs in rail industry cases but open and transparent justice it certainly isn't.
Haywain
Veteran Member
- Joined
- 3 Feb 2013
- Messages
- 15,352
The media know all about this. It's how they manage to get away with defaming people and putting a tiny apology on page 43 when the original story was on the front page.
jumble
Member
- Joined
- 1 Jul 2011
- Messages
- 1,114
This is just life and is no different to the person with a few quid to spare being able to afford a top class barrister to defend their case (Mr Loophole?)
We all know the wheels of legal processes turn extremely slowly. It is not inconceivable that this process started last autumn. If the touch data was legally held at that time then it is surely proper to retain it while the legal process plays out. Evidence doesn't suddenly become invalid once the original storage policies expire.
I agree. What about any appeals? It would be farcical if an appeal overturned a ruling because the data became time-barred.
ashkeba
Established Member
- Joined
- 13 May 2019
- Messages
- 2,171
Yes, it would be farcical and I am sure that GA could defend writing a longer retention clause into their privacy policy but they have not so it would be an entirely self-inflicted defeat.
I will not write more on this aspect but I hope that this thread will remain open so that more targets of the fishing trip can post their experiences and whether they feel they were fairly caught, or not but cannot defend it, or whether they will try to sink the boat.
- Status