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Can a Penalty Fare be charged if time restriction not followed?

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gray1404

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Passenger joins a train with a railcard discounted Off Peak Day Return, but at a time when the ticket is not valid due to a time restriction. The station has a ticket office and is on a line where all trains from the starting station are part of a plenty fare scheme. However the destination on the ticket is to a station served by another TOC (change of train required)

Is the passenger entitled to just get on the train and pay the excess en-route? I know for a fact the ticket office won't know how to do an excess?

If a RPI ticket check took place, can a penalty fare be issued in these circumstances or is only an excess payable?
 
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najaB

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If a RPI ticket check took place, can a penalty fare be issued in these circumstances or is only an excess payable?
I don't have them to hand at the moment for the exact wording, but the Penalty Fare Rules state that no penalty Fare should be charged where a ticket would be valid if not just for the time of day. I'm not sure if the Railcard complicates matters or not.
 

island

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The 2018 Penalty Fares regulations do not say that a Penalty Fare cannot be charged when a ticket is presented which is invalid owing to a time restriction. The old ones did, and the NRCoT suggests an excess is payable in the scenario.

Which of these prevails is another matter; I would tentatively say that the Penalty Fares Regulations, which are a law, override the NRCoT, which are a contract, but I am sure others will have their own views.
 

yorkie

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The current Penalty Fare rules may be unlawful; contract law cannot simply be 'overridden' as if it doesn't matter.

Also any change in the Penalty Fare rules would have to be properly recognised and approved; it's far from clear that proper procedures were followed.

It's a complex issue; consumer and contract laws are on the side of the customer. If the matter was to be tested in a suitable court, things could get very interesting.

I believe that any attempt to charge Penalty Fares for time restricted tickets being used at an invalid time or route restricted tickets being used on the wrong route, are absolutely scandalous and probably unlawful. I base this opinion on what experts have said when I've discussed the matter with various people; it's not just my opinion.

Most people don't have any idea what the legal position is, when there is an apparent conflict and contradiction between different areas of law. I didn't really have much of an understanding until relatively recently, when I had some interesting discussions with solicitors and barristers.

The rail industry is skating on very thin ice in terms of how some passengers are mistreated.
 

cactustwirly

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The 2018 Penalty Fares regulations do not say that a Penalty Fare cannot be charged when a ticket is presented which is invalid owing to a time restriction. The old ones did, and the NRCoT suggests an excess is payable in the scenario.

Which of these prevails is another matter; I would tentatively say that the Penalty Fares Regulations, which are a law, override the NRCoT, which are a contract, but I am sure others will have their own views.

But the NRCoT is a legally binding contract that specifically states that an excess is payable in the circumstances.
 

ForTheLoveOf

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It's a bit of a complex one. On the face of it, the Regulations appear to allow a Penalty Fare to be charged in these circumstances (assuming of course that the operator has provided the prescribed signage as to actually create a Penalty Fares station, which is very unlikely for most stations!). This is due to the definition of "valid ticket" under Regulations 3(2)(a)(i) and (ii):
any reference to a “valid travel ticket” is a reference to a travel ticket in a person’s possession which is valid for—
(i)the day and time of the journey that person is making, has made or intends to make;
(ii)the train and route used for that journey;

However, this is contradicted by the contents of the NRCoT, specifically 9.5, which states that you will simply be:
charged the difference between the fare that you have paid and the lowest price Ticket that is valid for the train you are using.

It is true that the NRCoT also make reference to Penalty Fares being chargeable in some circumstances but the fact that no reference of Penalty Fares is made in Condition 9.5 makes it clear that the intention is that such a situation is resolved by way of an excess. If there were to be any perceived confusion then, in any case, Section 69 of the Consumer Rights Act 2015 and the general legal presumption against the drafter of an unclear contract, would resolve the contractual issue in the passenger's favour.

One way of interpreting the resultant conflict between train companies' statutory rights (by way of the Regulations) and their contractual rights (by way of the NRCoT) would be to say that Condition 9.5 either serves as permission to board the train without a valid ticket, or that the ticket is not invalid at all, because it is or becomes valid subject to payment of an excess obtainable on the train. Thus a Penalty Fare would not be chargeable either through the definition of "valid ticket" or through the exceptions under Regulations 6(2)(c) or (d).

Alternatively one could interpret the situation as simply being that, whilst statute law gives the train companies the right to issue a Penalty Fare, and whilst they could in theory do so and ultimately sue the passenger for payment in the County Court, the companies have agreed to foregoe this right under Condition 9.5 and therefore in relation to any Penalty Fare issued, part-payment only in the amount of the relevant excess is required. This would certainly present a (partial) defence in the extremely unlikely event of a County Court claim.

Quite separate from the areas of contractual law and (administrative) statute law, the implications of a train company issuing a Penalty Fare despite having promised not to do so, could be relevant to criminal law in terms of consumer protection law. In particularl, this could be a breach of the ban on unfair commercial practices in Regulation 3 of the Consumer Protection Against Unfair Trading Regulations 2008.

This could thus lead to the unusual and arguably perverse situation of a train company being given the right by statute law to charge a Penalty Fare, the issuance of which would be a breach of contract and potentially a criminal offence subject to private prosecution!

The revised 2018 Regulations improved many things, but this is one area which brought a significant retrograde step. Unfortunately I wouldn't hold out any hopes of this changing anytime soon - the previous Regulations were made 16 years earlier and it took a sustained period of campaigning by a number of stakeholders in the rail industry for the current Regulations to be made.

And of course, in practice, none of the staff on the front line are likely to give a flying fig about any of this legal wrangling, and so if they are intent on issuing a Penalty Fare then that is exactly what they will do, and the overwhelming majority of recipients of such Penalty Fares will be none the wiser as to what has happened and will simply pay up.
 

CyrusWuff

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Whilst Condition 9.5 says an excess is payable, Condition 10.2 goes on to state:

10.2. Train Companies are required to ensure that warning notices are clearly displayed on trains and stations where such schemes operate. Within the areas where such schemes operate, you may be charged a Penalty Fare if:
...
10.2.3. You travel on a train service at a time when your Ticket is not valid;

So the NRCoT manages to contradict itself in the space of two paragraphs...Good innit?
 

island

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I have had a change of view since this morning and I now agree with gwrtimetable19 – the TOCs had at law the right to charge a Penalty Fare under the 2018 Regulations and have given it up by formulating NRCoT 9.5 in the way they did. Any attempt to enforce a Penalty Fare in the circumstances we’re discussing would likely be an abuse of process. I’m not necessarily convinced it would be an offence, but little turns on that.
 

gray1404

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So having considered all of the above and due to the misleading information out there, it seems that all that can be charged on board or during a revenue check is the difference between the railcard discounted Off Peak Day Return already paid and the price of a railcard discounted Anytime Day Return. Any Penalty Fare, would have to be overturned on appeal. In the event of a dispute and anyone insisting on issuing a Penalty Fare, would be best to just let them do this (and maybe pay the £20 on the spot - in this case it would be £20) and appeal it later, knowing it will have to be overturned.
 

bkhtele

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I agree with gray1404 above. Also "However the destination on the ticket is to a station served by another TOC (change of train required)" this also make a pf less likely as tocs sometimes avoid pfs involving multiple tocs. Not sure what would happen if someone ignored regular warnings. Broadly best to get excess prior to departure to avoid conflict!
 
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gray1404

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The second TOC also operates a PF scheme on the trains/stations concerned. There is no way the first TOC is going to issue an excess at the ticket office before departure. They are useless for anything slightly more complicated/for travel off their network. I reckon if a PF were issued, it would only be to the change of train point on TOC 1.
 

island

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There is no way the first TOC is going to issue an excess at the ticket office before departure. They are useless for anything slightly more complicated/for travel off their network.
Miseryrail, by any chance? ;)
 

bb21

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The second TOC also operates a PF scheme on the trains/stations concerned. There is no way the first TOC is going to issue an excess at the ticket office before departure. They are useless for anything slightly more complicated/for travel off their network. I reckon if a PF were issued, it would only be to the change of train point on TOC 1.
If you sought to purchase the excess at the ticket office prior to departure, and the ticket office could not issue it, it would absolve you of any responsibility further along in respect of anything over the excess fare. There is simply no need to then get into a discussion or argument about what the legislation allows you to do or not.

Makes life much easier.

But without asking and attempting it in the first place and making assumptions, you would just end up making life more difficult for yourself for no good reason.

"I asked at the ticket office and the member of staff was unable to sell me the excess so told me to sort it out at the other end of the journey." is a much more robust line of defence than "I didn't speak to the ticket office because I assumed the person is incompetent."
 
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