I’ve asked them to provide an example of where the full fare would be different on a weekend other than through a non anytime fare. I’ve also told them the reason I referred this to LTW is because I think the appeals body used the wrong process - testing the case against guidelines and not the regulations. Let’s see what they come back with.
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Penalty fare Appeal and conditions of carriage question
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some bloke
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Another problem they face is mentioned by @Silverdale above: the "explanation" omits why the regulation includes not just day but also "time".
So they’d need to come up with an example where the full single fare is different on a particular day and time but still an anytime fare.
Llanigraham
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Having been involved in discussions with Government over a change in legislation I can assure you that no one person writes it. It is very much a "committee" procedure.
some bloke
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Well, that or something equally relevant might make their argument appear more plausible. But they would still need to show that (b) only applied in such cases and not in general.
What I was getting at earlier is that the manager possibly didn't understand they were talking about the law rather than an industry guideline.
Whether your next step is the chief exec, the Local Government Ombudsman, the Department, or the MP, one option is to include a link to this thread.
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But someone must sign it off and surely, depending on what system they use initially to cretwe the document, there must be a yra e as to who worked on it.
Certainly is whne using Google Docs, assuming the original document is kept and not just a fresh copy, with the original deleted.
So if there is a valid example where the full single fare is different on a weekend (other than through an off peak etc), maybe because for example on a weekend you can only take a particular route to get from a to b as the alternative line is shut on weekends (and the 2 routes have different fares), would LTW’s latest Argument then be valid? Although then part b and part c of 9(6) would just be there for the same reason.
Or what about if after a certain time or on certain days on a particular route (with both commuter and intercity services between a and b with different fares) only one of them runs?
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some bloke
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All that the existence of these kinds of unusual situations could do is provide a *possible* explanation, or possible partial explanation, as to why the drafters included sub-paragraph (b) on day and time.
LTW would still have to show why the words "is to be determined by reference to...the day and time" don't also apply more generally, including to your case.
The idea that
"the drafters must have had these kinds of examples in mind"
could not disprove what might be regarded as the common-sense interpretation:
"the drafters meant this to apply to time-and-day-related distinctions in general, such as between anytime and off-peak fares
(irrespective of whether they had those examples in mind)".
If LTW can't find examples relating to day and time, then the argument they are using has another problem, which is why it's worth noting.
LTW would still have to show why the words "is to be determined by reference to...the day and time" don't also apply more generally, including to your case.
The idea that
"the drafters must have had these kinds of examples in mind"
could not disprove what might be regarded as the common-sense interpretation:
"the drafters meant this to apply to time-and-day-related distinctions in general, such as between anytime and off-peak fares
(irrespective of whether they had those examples in mind)".
If LTW can't find examples relating to day and time, then the argument they are using has another problem, which is why it's worth noting.
ForTheLoveOf
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Indeed. And another notable thing to point out which renders LTW's reading illogical is that, if the date and time of travel is not taken into account then it could lead to a situation where a passenger is penalised not once, or even twice, but three times over for their misdeed (and perhaps four times over if they held a Railcard).
Imagine the case, for example, of someone holds a ticket from London to Cambridge on a weekend, but stays on until Cambridge North (perhaps under the mistaken understanding that "Cambridge" covers both, like "Cambridge Stations" might). If they were then intercepted at Cambridge North without a ticket, LTW are saying they would agree with a TOC which charged the passenger a Penalty Fare for (1) the entire journey from London (i.e. ignoring the ticket already held), (2) at the Anytime, "Any Permitted" rate, when the much cheaper Super Off-Peak rate is valid, (3) at twice that fare, (4) without any Railcard discount. The first, third and fourth elements are more than sufficient penalty as it is.
Thus, according to that logic, the single journey from London to Cambridge North might end up costing the passenger £50.20 plus their existing ticket of £7.60 (if they went for the GA only option and had a Railcard), which incidentally would have been the same price in the first place to Cambridge North. It is clearly an Penalty so disproportionate that it is clear why it cannot be correct or intended. A Penalty Fare of twice the adult-rate "full single fare appropriate" would be £23.00, which is harsh but nowhere near as disproportionate.
Is there a requirement somewhere that the words have to be applied generally?
some bloke
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I don't think there needs to be. The words " “the full single fare applicable” is to be determined by reference to...the day and time..." seem to me to apply generally, since they state a procedure without exceptions or limitations.
So just playing devils advocate, would LTW have a valid point if they claimed it was determined by reference to day and time because at the time travelled, all services on the line between Kings Cross and Stevenage were running? Therefore the full anytime fare is the correct fare. It would not have been if Thameslink services were not running at that particular day and time. In fact, I can see the CEO of LTW saying this.
some bloke
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It might be odd if the drafters meant other available services, since they could have written about services rather than day/time. (In any case, there's another sub-paragraph referring to the particular train and route).
Similarly, it might be odd if they put in the day/time part in the full knowledge that most people associate
a) "day and time" in the context of fares
with b) anytime vs off peak etc,
but didn't mean that, and instead meant to refer to obscure examples.
It seems legitimate to view this as LTW's problem, since they have a duty to get answers and presumably to be clear in their own answers. So asking them to clarify their position seems reasonable. The same may apply to others with related duties.
You're making progress in that LTW have said the passage in the legislation is "misleading", they think it is "ambiguous", and that the examples they say exist about days are "probably" why day/time are referenced. This in itself is more material - for one thing, they haven't even said the law is clear.
Similarly, it might be odd if they put in the day/time part in the full knowledge that most people associate
a) "day and time" in the context of fares
with b) anytime vs off peak etc,
but didn't mean that, and instead meant to refer to obscure examples.
It seems legitimate to view this as LTW's problem, since they have a duty to get answers and presumably to be clear in their own answers. So asking them to clarify their position seems reasonable. The same may apply to others with related duties.
You're making progress in that LTW have said the passage in the legislation is "misleading", they think it is "ambiguous", and that the examples they say exist about days are "probably" why day/time are referenced. This in itself is more material - for one thing, they haven't even said the law is clear.
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ForTheLoveOf
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So you are saying that if only LNER services were running, and if LNER had a Penalty Fares scheme (which they don't), then the appropriate fare would be determined by reference to the route "LNER only" fares?
I suppose a very stretched and non-obvious interpretation of the wording could be that but things in law always talk their ordinary definition by default, and "determined by reference to ... the day and time of travel" (shortened paraphrase) is pretty clearly referring to different kinds of fares for different periods of validity (Anytime, Off-Peak).
I also said to them that if they can come up with a valid example to back yo their explanation, I would accept that as a valid interpretation. But sounds like they might struggle with that.
some bloke
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Yes. They claim it doesn't apply in your case. The fact (if it is a fact) that it does apply to another example doesn't prove the point. You can just say "on reflection...".
If you're interested, you could at the same time ask the DfT and perhaps National Rail.
As far as LTW are concerned, they're basing a firm conclusion on what they admit is only a "probable" basis. That in itself - especially combined with their comments about "misleading" and "ambiguous" - is reason to say their answer is unsatisfactory, even apart from the main issue about interpreting the regulation. Next time you write, you can add that you'll take it to the Local Government Ombudsman if they don't provide a clear answer.
Edit: "Network Rail" replaced by "National Rail".
If you're interested, you could at the same time ask the DfT and perhaps National Rail.
As far as LTW are concerned, they're basing a firm conclusion on what they admit is only a "probable" basis. That in itself - especially combined with their comments about "misleading" and "ambiguous" - is reason to say their answer is unsatisfactory, even apart from the main issue about interpreting the regulation. Next time you write, you can add that you'll take it to the Local Government Ombudsman if they don't provide a clear answer.
Edit: "Network Rail" replaced by "National Rail".
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ForTheLoveOf
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Not sure what Network Rail could really add to this, it's a fares/legal issue not an infrastructure issue. Unless you meant National Rail Enquiries in which case, why waste your time?!
some bloke
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Yes, sorry, I meant National Rail - they claim to answer the question "How much does a Penalty Fare cost?". https://www.nationalrail.co.uk/times_fares/ticket_types/187936.aspx
Wouldn’t they simply quote the guidelines on it which they wrote? The same set of guidelines which every Tom, Dick and Harry of the Railways seems to have decided is the ultimate indisputable bible of the issuing of Penalty Fares.
some bloke
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Their answer on cost links to the legislation rather than the guidelines. It's only a suggestion in case you're interested to write briefly - what they would answer might depend on the person. The guidelines' introduction says they are authored by RDG, though National Rail's name is on the document; you can write to RDG or whoever you like, and as above you have LTW saying the passage in the legislation is misleading. Speculation is all very well but I think people have provided some good options and material above for you to continue with this if you choose.
From LTW Manager “I have passed your complaint to the executive team who will check the information I have given you is accurate. Just to clarify we have remit over the procedures such as letters being sent out in accordance to process with the correct signpost information given where applicable. We do not have any remit over how the appeal was tested nor how the outcome was reached and there is no individual at London TravelWatch who can overturn or change the findings of the Independent Appeal Panel
I do understand your point of view and I am in discussion re the misleading wording in the penalty fare regulations. However, London TravelWatch is not a penalty fare body and neither can we legally challenge the outcome. If you wish to challenge the outcome you must seek independent legal advice. The executive team will check that the information I have given is accurate but they do not investigate the complaint.”
I intend to await a response from the executive team and then refer to the Local council ombudsman.
I do understand your point of view and I am in discussion re the misleading wording in the penalty fare regulations. However, London TravelWatch is not a penalty fare body and neither can we legally challenge the outcome. If you wish to challenge the outcome you must seek independent legal advice. The executive team will check that the information I have given is accurate but they do not investigate the complaint.”
I intend to await a response from the executive team and then refer to the Local council ombudsman.
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some bloke
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This may be of interest:
https://www.lgo.org.uk/make-a-complaint/how-we-deal-with-your-complaintThe Local Government and Social Care Ombudsman said:
Haywain
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What has this got to do with the local government ombudsman?
I think this one lost focus long ago! A complaint about the complaint about the complaint, or something...
Haywain
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I thought that, but it's a bit like complaining to Tesco about the service in Asda.
some bloke
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Earlier in the thread it was pointed out that the "Local Government Ombudsman" is the organisation which LTW present as the next stage if someone is dissatisfied with their response. The suggestion was that ten7 could attempt to get LTW to clarify, then write briefly to the Ombudsman. There was general agreement in the thread that LTW were not doing their job properly in this case.
Although the thread might appear to have "lost focus", the result of helping the OP in several exchanges with LTW seems to have been that LTW, as noted above, stated that the legislation was "misleading".
That could be useful material for the OP to present to the Ombudsman, to their MP or in another context. The thread has pointed out the limits of the Ombudsman's remit and the fact that the process may take a long time - which may mean the OP would want to contact their MP or the Department, and/or take another route.
It is perhaps more useful for members to say what they think should be done rather than what they see as unsuitable.
Although the thread might appear to have "lost focus", the result of helping the OP in several exchanges with LTW seems to have been that LTW, as noted above, stated that the legislation was "misleading".
That could be useful material for the OP to present to the Ombudsman, to their MP or in another context. The thread has pointed out the limits of the Ombudsman's remit and the fact that the process may take a long time - which may mean the OP would want to contact their MP or the Department, and/or take another route.
It is perhaps more useful for members to say what they think should be done rather than what they see as unsuitable.
Haywain
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Not that you'd be doing that, eh?
Just to give an update DfT responded to this and said although they can’t provide legal challenges/advice or intervene in individual cases, which is fair enough, the guidance published by RDG must be clear and leave no scope for confusion regarding any consistency with the regulations and that for any appeal, appeals body must make decisions based on the regulations.
Nothing from the ombudsman yet.
Nothing from the ombudsman yet.
They can intervene indirectly if what happened was not consistent with the franchise agreement e.g. if there is evidence the appeals body didn't follow the regulations that could amount to putting the TOC in breach of its franchise agreement (as it agreed to appoint an appeals body that would comply) and lead to the DfT issuing a breach notice and the TOC having to agree how to reach compliance.
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