An unsatisfactory start from the Rail Ombudsman

[yorkie]

A case was brought before the Rail Ombudsman where Northern had contravened the National Rail Conditions of Travel (NRCoT) by refusing to pay compensation on tickets because they were discriminating according to ticket type.

The customer had requested compensation for a delay when a train was cancelled. We know from the recent thread that the interpretation of NRCoT from the Department for Transport (DfT) is that compensation applies to "all ticket types" and this includes "the rail element of multi-modal tickets". In light of the wording of NRCoT and the provisions of the Consumer Rights Act 2015 it is very difficult to take any interpretation of this other than the one taken by the DfT - that is to say the train operator cannot use the ticket type as a reason not to pay compensation.

Unfortunately Northern did so, and in their adjudication, the Rail Ombudsman decided to contradict the DfT by saying, in respect of delay compensation, that Northern "is clear in the exclusion of multi-modal tickets from the delay repay scheme."

Embarrassingly, their ajudication tried to mitigate their own failure of expertise and competence in consumer advocacy by saying that the ticket type "was a multi-modal ticket, which covered a vast system of transportation." and "allows the effect of delays or cancellations to be off-set by the number of alternate methods of transportation available" - as if this somehow means customers will always experience less delay with these type of tickets, or that this actually affects the legally binding nature of the contract between the customer and the business!

Unfortunately they did not provide a name, so we don't know who at the new organisation is so misinformed.

The Rail Ombudsman makes the following bold claims on their website, which are in direct contradiction to the adjudication:-

https://www.railombudsman.org/

The Rail Ombudsman is an independent, not-for-profit organisation. We offer a free, expert service to help sort out unresolved customer complaints about service providers within the rail industry.

Our vision is to inspire customer confidence and to deliver our service fairly to ensure the right outcome in every case. We also support the rail industry to raise standards.

Passengers had previously made it clear they were unhappy with the ineffective and unknowledgeable Transport Focus, but early indications are that the Rail Ombudsman may be dogged by exactly the same issues regarding lack of expertise.

 

[ForTheLoveOf]

A disappointment to me, as I had hoped that this would be an opportunity to avoid the need to take train companies to Court when they fail to abide by their legal obligations. However, if the Ombudsman is this useless (and certainly if we hear of more cases that run along similar lines), then it's hardly worth wasting your time with them, just as the situation was with Transport Focus.

I suppose that will leave their only function for passengers like me who don't appreciate being fobbed off or having their time wasted, as dealing with complaints that relate to poor customer service but matters that aren't actionable in Court.

Unfortunately perhaps it was unrealistic to expect a step change in an industry such as this.

 

[robbeech]

Whilst I agree this is disappointing I will point out it is possible that the person dealing with the case has not been directly linked to the message by the former transport minister and whilst this is no excuse (they’re supposed to be experts) I think that it’s possible this is where problems may arise.

At the end of the day we are taking the wording of a statement and forming an opinion on it. It’s valid, it’s perfectly justified and i see no way it could be misinterpreted but if they data that they hold is incorrect then problems can arise.
I think in part, the problem could be due to this statement not necessarily being part of an official document.

More work to do by them to improve.

 

[Starmill]

if they data that they hold is incorrect then problems can arise.

It would seem that there is no right of appeal against any Rail Ombudsman ajudication:

What if you don't agree with our decision?

We always look to be fair and reasonable. However, you might disagree with us. You are fully entitled to do that. However, once a decision has been made the case is closed. We won’t be able to help you further, but we can advise you what else you can do: for example, taking legal action through the courts.

https://www.railombudsman.org/resource-area/faq/#toggle-id-37

So if they make a procedual or administrative error in their judgement, presumably that is simply a case of hard luck? Is that how it works at other Ombudsman services?

 

[ainsworth74]

So if they make a procedual or administrative error in their judgement, presumably that is simply a case of hard luck? Is that how it works at other Ombudsman services?

Pretty standard. Everyone's favourite the Financial Ombudsman says this about their final decision:

Can I appeal against an ombudsman's decision?

An ombudsman's decision is our last word on a complaint - and if the consumer accepts it, it's legally binding on them and the business.

Before a final decision is made, the ombudsman will give both sides the chance to present whatever facts or arguments they feel are relevant to the case - and by the time the decision is made, both parties should have a clear view as to what the outcome is likely to be.

Because our decisions are final, they can't be reviewed by another ombudsman. As a public body, we can be judicially reviewed by the courts - but this will generally focus on the way an ombudsman arrived at their decision, rather than the facts and merits of the case itself.

 

[Starmill]

Pretty standard. Everyone's favourite the Financial Ombudsman says this about their final decision:

Oh goody. So there's no intermediate step between opening a case at the Ombudsman and.... Judicial Review! Excellent!

I think this probably just makes the point that the consumer is out on their own in only the same way they would have been if the Ombdudsman didn't exist if they bring a case to the Ombudsman who then make this kind of basic mistake, as others have suggested.

 

[ainsworth74]

Oh goody. So there's no intermediate step between opening a case at the Ombudsman and.... Judicial Review! Excellent!

Yes just a mild escalation there!

To be fair when it comes to the FOS I believe they're binding on company and consumer. Whereas here it's just binding on the company so the consumer still has recourse to slightly less extreme measures such as a county court claim.

 

[Starmill]

Away from the legal and practical implications of a judgement like this, if I were an MP, I would also be hugely worried to read about that from a democratic persepective too.

On the one hand, we might have a Government Minister, no less, submitting a totally and unequivocally wrong statement to the House of Commons, about a matter within their own remit as Minister. The Ombudsman appear to have taken a diametrically opposed position to that of the Rail Minister, and they don't even agree on the facts. If a statement that inaccurate (this isn't just a few words out or a technicality on the record) can be submitted to the House of Commons without consequence then the special relationship of trust between voters and representatives is bound to be damaged. On the other hand, and perhaps more likely, we could have a government contractor here totally ignorning instructions from the government, despite being bound by contract and in reciept of a large sum of taxpayers money, in a way that is strongly detrimental to the people that government represents, to the tune of hundreds of thousands of pounds.

Indeed, it worries me that we find ourselves in this situation, even in the railway industry and even with this government.

 

[Haywain]

we might have a Government Minister, no less, submitting a totally and unequivocally wrong statement to the House of Commons, about a matter within their own remit as Minister.

Sadly, this is not remotely unusual in the current government particularly where transport matters are concerned.

 

[Kite159]

Not the best of starts from the new "independent" service, considering that Northern are the only TOC to decide not to pay out Delay Repay on 'multi-model' tickets because they are tight. (Imagine the outrage if Southern decided to stop paying out delay repay claims for passengers using Oyster/contactless/travelcards within the London zones)

 

[JB_B]

I would guess it went something like this...

DfT: We've got to have an Ombudsman but we don't want any trouble.

RDG: Don't worry - this lot have being doing furniture for years - they'll cover us too and they're very cheap.

DfT: Great!

Oh goody. So there's no intermediate step between opening a case at the Ombudsman and.... Judicial Review! Excellent! ...

I'm wondering whether an objective observer might consider the whole process of appointing the self-described "The Ombudsman Service Ltd" (formerly TFO Dispute Resolution Ltd - where, presumably, TFO = The Furniture Ombudsman )

as being "So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. " ?

 

[Tetchytyke]

The Furniture Ombudsman are notorious for siding with the dodgy retailers (hi DFS, I'm looking at you) regardless of the merits of the case you bring.

So I can't say I'm surprised.

To be fair when it comes to the FOS I believe they're binding on company and consumer.

Only if the consumer agrees to be bound. A consumer whose case is rejected by FOS can still pursue legal action (and not just judicial review) against a company. But they'd generally be foolish to, as it's unlikely a Court will decide differently.

Companies can't appeal a FOS decision, and nor can they ignore it.

 

[Starmill]

Sadly, this is not remotely unusual in the current government particularly where transport matters are concerned.

To get something so wrong you state the opposite of the truth, and then leave it months and don't go back and apologise and correct the record suggests a height of incompetence to me. To deliberately mislead the House, by contrast, is a very serious charge that has seen numerous Ministers sacked or forced out. Both will degrade trust still further in the political system.

Imagine the outrage if Southern decided to stop paying out delay repay claims for passengers using Oyster/contactless/travelcards within the London zones

Precisely. It would be an unthinkable abuse of contract by the company there, and it is no less of one here given the apparent clarity over interpretations in the government that we all thought we were provided with.

 

[OwlMan]

The Minister used the word "should" not "must" or "will".

 

[ji459]

Claiming compensation for an alleged breach of the Conditions of Travel is not the same as claiming delay repay compensation. Northern's passenger charter details their delay repay arrangements and says "We are currently not in a position to offer Delay Repay compensation for multi-modal travel". This is what the Ombudsman seemingly relied on. If the complaint didn't expressly say compensation was being sought under the Conditions of Travel and not delay repay, the outcome isn't surprising (or wrong).

 

[Starmill]

The Minister used the word "should" not "must" or "will".

The requirement placed upon Ministers is to be honest - and to never be misleading. Saying that someone 'should' happen is no less misleading than saying it will, if you already know it never does.

Besides, the Minister said "this applies to all ticket types" - which is an unequivocal statement.

 

[Starmill]

If the complaint didn't expressly say compensation was being sought under the Conditions of Travel and not delay repay, the outcome isn't surprising (or wrong).

The Ombudsman specifically state on their website that they do take the NRCoT, and the provisions of the Consumer Rights Act into account. The NRCoT are unequivocal - the company's charter cannot offer fewer or less rights than they do. The Ombudsman clearly do not appreciate that!

 

[yorksrob]

If this furniture company don't take the conditions of travel into account, what purpose do they serve ?

Passengers would be better off taking them to the Courts (the judiciary, rather than the settee shop, although they probably couldn't be more useless than the so-called ombudsman by the sounds of things).

 

[ji459]

They adjudicate complaints based on the evidence and arguments that have been put forward. It's up to the customer to clearly put their case and state the basis for any claim.

 

[Starmill]

They adjudicate complaints based on the evidence and arguments that have been put forward. It's up to the customer to clearly put their case and state the basis for any claim.

I can see that you're trying your best to sound clever, but I don't think this particular point changes anything. It's plain to me from a simple reading of NRCoT what the situation is. The Ombudsman obviously read that, then read the 'Customer Promise' and decided that the latter takes precedence.

 

[Fawkes Cat]

Are the rulings published anywhere please?

 

[ji459]

Are the rulings published anywhere please?

It doesn't appear so, but they say they will publish "information and data" relating to complaints in due course.

 

[greatkingrat]

The problem is there is no definitive statement in the NRCOT about compensation for multi-modal tickets (and no, a parliamentary written answer is not part of the conditions of travel).

Northern's policy is quite clear, they have chosen not to pay delay compensation on multi-modal tickets. Whether you or I or the Minister agree with that policy or think it is unfair is irrelevant. The job of the Ombudsman isn't to rewrite the policy, it is to make sure it has been applied fairly and consistently.

 

[ForTheLoveOf]

The problem is there is no definitive statement in the NRCOT about compensation for multi-modal tickets (and no, a parliamentary written answer is not part of the conditions of travel).

Northern's policy is quite clear, they have chosen not to pay delay compensation on multi-modal tickets. Whether you or I or the Minister agree with that policy or think it is unfair is irrelevant. The job of the Ombudsman isn't to rewrite the policy, it is to make sure it has been applied fairly and consistently.

They have said that is their policy, but if the NRCoT give you the right to compensation then they may as well say "it is our policy to wilfully evade contractual debts".

The fact that the NRCoT does not address multi-modal tickets is irrelevant - it doesn't qualify the right to compensation to specific types of tickets (as, for example, the right to do non-stopping splits is). Thus it applies to all ticket types.

The statement by the Government minister doesn't form a part of the NRCoT, correct. But if the matter were ever to go to Court then I would have thought it would be taken as strong evidence as to the intention behind the NRCoT - bearing in mind that any versions of, or revisions to, the NRCoT have to be approved by the DfT.

 

[greatkingrat]

I think people are reading into the NRCoT what they want it to say, not what it actually says.

Nowhere does it say there is an automatic right to compensation for every possible type of ticket that could be used to travel on the railway. For single and return tickets there are specified minimum levels of compensation. For any other ticket, the NRCoT is silent about what, if any compensation is due.

 

[Starmill]

and no, a parliamentary written answer is not part of the conditions of travel)

I don't think anyone claimed it did. There are multiple possible interpretations of the NRCoT. Yorkie says that the written answer is merely a tool to in interpreting that. The answer is from the highest level in government. Of course, for certain people on this forum, even that is not good enough.

 

[ForTheLoveOf]

I think people are reading into the NRCoT what they want it to say, not what it actually says.

Nowhere does it say there is an automatic right to compensation for every possible type of ticket that could be used to travel on the railway. For single and return tickets there are specified minimum levels of compensation. For any other ticket, the NRCoT is silent about what, if any compensation is due.

And so one is to draw from that holders of other ticket types are entitled to nothing...

 

[Starmill]

And so one is to draw from that holders of other ticket types are entitled to nothing...

Anyone who suggested that compensation isn't available to users of Annual Travelcards who are delayed on Southern would be laughed at, by most of us, the media and the government. Why should Northern get a 'free pass'?

 

[Alex C.]

Yes just a mild escalation there!

To be fair when it comes to the FOS I believe they're binding on company and consumer. Whereas here it's just binding on the company so the consumer still has recourse to slightly less extreme measures such as a county court claim.

FOS decisions are binding on the business only, the consumer can still follow up via the courts.

In addition, when you make a complaint to the FOS, it is reviewed by an adjudicator or investigator. These staff handle the vast majority of complaints - if the business, or the consumer disagree though, they can escalate it to an ombudsman who will generally be a senior professional (e.g ex-barrister) for a final decision.

This process is pretty costly though - the business pays £550 for every complaint dealt with by the ombudsman. This does have the upside of focusing minds at financial companies before you get to that stage...

 

[superalbs]

This process is pretty costly though - the business pays £550 for every complaint dealt with by the ombudsman. This does have the upside of focusing minds at financial companies before you get to that stage...

Wow. Does that apply to the railway one too?