Avanti denying delay compensation for return journey

[Belperpete]

Apologies that this is a long post, but it is a summary of a dispute that has been going on now for the best part of 6 months.

Last year, I had a weekend away to London, travelling on an off-peak return bought from TfW. I was delayed by over 2 hours by Avanti West Coast on my outward journey, and then by over 3 hours on my return journey. When I submitted my Delay Repay claim to Avanti for the outward journey, it was approved for 100% compensation without any issues. However, when I submitted my claim for the return journey, it was rejected as they claimed they couldn’t find any details for the services I used. After several months of back and forth and a string of different excuses, they finally admitted that they were refusing to pay compensation as it was company policy not to in such situations, where they had already paid 100% compensation for the outward journey.

I pointed out that their company policy contradicts their Customer Charter, which includes no provision for denying compensation in such cases. It also appears to be non-compliant with Article 17 of the Rail Passengers’ Rights and Obligations (RPO). Their response was that the RPO was based on European Regulations, which only provide for 50% compensation for each journey leg, and therefore a maximum of 100% for both outward and return.

I pointed out that regardless of any European Regulations, they were legally obliged by the RPO to pay at least 50% compensation for the return journey, independent of any compensation paid for the outward journey. The payment they had made previously was clearly stated as being compensation for the delay to the outward journey, with no mention of the return journey. The RPO also makes it clear that the outward and return journeys are to be treated separately, and includes no provision to limit compensation as they were doing. I also pointed out that they were also obliged by their franchise contract to pay 100% compensation in accordance with their Customer Charter, which also includes no such provision to limit compensation.

Finally, they have issued a dead-lock letter stating that they have already paid 100% compensation, for the outward journey, and that under European practice no further compensation is due.

For all their witterings about European practice, I still believe that under UK law I am entitled to compensation for the delay to my return journey, independent of any compensation paid for the outward journey. In their dead-lock letter, they have stated that I can raise this with the Rail Ombudsman, however I am aware that the Ombudsman does not have a particularly good reputation on here. Has anyone had experience of raising a similar denial of compensation issue with the Ombudsman?

Secondly, they failed to address my complaint that both their web-site and Customer Charter encourage people to submit claims in situations that they are going to reject, based on their secret company policy. Their guard also encouraged me to apply for compensation. They are therefore deliberately encouraging people to waste their time submitting claims that are going to be rejected, which just rubs salt in the wound after having already subjected them to delay on their journey. Again, I feel that the Ombudsman should force Avanti to adhere to what they say they in their Customer Charter, and are contractually committed to.

Thirdly, they ignored my request to raise a separate customer complaint about the unprofessional manner in which my claim had originally been handled, with me being given a string of different excuses, and several months delay, before they finally admitted the real reason why they were rejecting my claim. At one point, they sent me an email saying that I should email their Customer Services Team if I wished to appeal, only to get an email back from Customer Services saying that they were unable to deal with issues relating to Delay Repay! When I telephoned to complain about this, I was told that Customer Services indeed could not deal with Delay Repay issues, and all she could do was reopen the case to get the Delay Repay team to look at it yet again. Multiple times they claimed that they couldn’t find details of the services used, even after I had provided them with copies from Real Time Trains. As they have failed to apologise for this deliberate waste of my time, I intend to take this further. I believe that Transport Focus would be the best avenue to complain about this abysmal customer service?

Finally, they denied my request to see a copy of their company policy on which their decision was made. As they are not a public body, I can’t force them to make it public under a FoI request. However, if I take them to the Small Claims Court, I believe that I can force them to disclose it as evidence, as they have stated in writing that it is the basis on which they are refusing payment?

 

[AlterEgo]

An identical case from last year, and GWR:

Dispute with GWR over Delay Repay compensation

Hello, Recently I made a return journey from my home town to Bristol with GWR. On the outward journey I was delayed 45 minutes and on the return journey I was delayed 121 minutes. I made 2 claims for "delay repay" to GWR, however in doing so, I had noticed that the amount GWR state they award...

www.railforums.co.uk

I agree with the posters there that under the NRCoT, your claim under delay repay is limited to the price paid for your ticket. This doesn’t affect any other statutory rights you may have, but I fear you may be onto a loser here.

 

[Belperpete]

Interesting that they haven't mentioned the NRCoT once, but seem to keep banging on about European practice. And as they haven't mentioned it yet, before issuing the deadlock letter, can they now use it as a reason?

However, my point still stands that they are actively encouraging people to waste their time by submitting claims that are going to be rejected - and in my case, a significant amount of time before they finally admitted why they were rejecting my claim.

 

[AlterEgo]

Interesting that they haven't mentioned the NRCoT once, but seem to keep banging on about European practice.

However, my point still stands that they are actively encouraging people to waste their time by submitting claims that are going to be rejected - and in my case, a significant amount of time before they finally admitted why they were rejecting my claim.

That may be so, but I cannot see how you have an argument that you are due more than the cost of the ticket under Delay Repay. If you have additional costs or feel you are due further compensation, there is however nothing to stop you trying to recoup that via other legal means.

 

[Belperpete]

That may be so, but I cannot see how you have an argument that you are due more than the cost of the ticket under Delay Repay.

My argument is that I am due enhanced Delay Repay compensation as advertised in Avanti's Customer Charter, rather than the more basic compensation specified in the NRCoT.

 

[MrJeeves]

My argument is that I am due enhanced Delay Repay compensation as advertised in Avanti's Customer Charter, rather than the more basic compensation specified in the NRCoT.

The NRCoT defines a cap on the compensation available under industry arrangements. Delay Repay is an industry arrangement.

If you are seeking delay repay this is something you are not entitled to as a statutory right, but instead something offered as part of the contract formed when purchasing a rail ticket and using it to travel on an operator.

The minimum compensation is defined in the NRCoT while operators can choose to offer higher levels of compensation if they choose to.

32.1.1 through the industry arrangements provided for:
32.1.1.1 in these Conditions; and/or
32.1.1.2 in the Passenger’s Charter of the relevant Train Company

32.2. For claims made under the industry arrangements (set out at paragraph 32.1.1 above) for losses caused by the delay and/or cancellation of a train service, you can only recover up to the price of your Ticket or Tickets

Your argument of being entitled to additional compensation under your statutory rights in UK legislation, on the other hand, has a slight bit of weight being it, but good luck trying to exercise it.

 

[robbeech]

I would put money on them rejecting any form of discussion about the PRO, suggesting it’s a European thing not a UK thing if they left you stranded overnight. I’m actually quite surprised they’ve mentioned it. Unless I’m mistaken you’re suggesting that it was them that brought it up first and not yourself?

 

[SuspectUsual]

Is the clue not in the name? Delay Repay

How can you be repaid more than you paid in the first place?

 

[AlterEgo]

My argument is that I am due enhanced Delay Repay compensation as advertised in Avanti's Customer Charter, rather than the more basic compensation specified in the NRCoT.

This is the same position as the other thread with GWR. Regrettably I would have to agree with @Watershed’s posts in that thread and that your claim under delay repay is abortive. The Conditions of Travel - which form part of the contract you have - are unfortunately very clear that you cannot recoup more than the cost of the ticket. I don’t see much mileage in claiming that because Avanti’s Passenger Charter doesn’t repeat this, the proviso doesn’t apply.

As you are minded to pursue the matter in the courts, you might like to claim the return journey was not provided with reasonable care and skill (not very easy to prove if it was a fatality or weather, much easier if it was a train fault or staff shortage) and send a letter before action.

 

[Skymonster]

It baffles me that anyone would think they should get more back than they paid under a repay scheme - if it was openly promoted as a compensation scheme I would think differently (and I do think the railway should have a scheme that compensates for the time it wastes delaying / inconveniencing passengers but that’s different debate).

 

[Watershed]

Apologies that this is a long post, but it is a summary of a dispute that has been going on now for the best part of 6 months.

Last year, I had a weekend away to London, travelling on an off-peak return bought from TfW. I was delayed by over 2 hours by Avanti West Coast on my outward journey, and then by over 3 hours on my return journey. When I submitted my Delay Repay claim to Avanti for the outward journey, it was approved for 100% compensation without any issues. However, when I submitted my claim for the return journey, it was rejected as they claimed they couldn’t find any details for the services I used. After several months of back and forth and a string of different excuses, they finally admitted that they were refusing to pay compensation as it was company policy not to in such situations, where they had already paid 100% compensation for the outward journey.

An unpublished company policy can't restrict your legal rights. It could only be used to determine the amount of discretionary compensation paid - but this isn't a case where you are seeking that.

I pointed out that their company policy contradicts their Customer Charter, which includes no provision for denying compensation in such cases.

Unfortunately, they will likely seek to rely on the fact that their Charter has to be read in conjunction with the NRCoT, which incorporates the Charter as a contractual document. The NRCoT does indeed limit compensation under "industry arrangements" to the price paid.

I agree that this limitation should be reiterated in the Charter - but I wouldn't be confident that their failure to do so means the limitation doesn't apply.

It also appears to be non-compliant with Article 17 of the Rail Passengers’ Rights and Obligations (RPO). Their response was that the RPO was based on European Regulations, which only provide for 50% compensation for each journey leg, and therefore a maximum of 100% for both outward and return.

This is an avenue of claim that I hadn't considered before. Article 6 of the PRO is clear that train companies can provide more favourable conditions if they want, but that contractual clauses cannot limit your PRO rights.

The NRCoT also clearly distinguishes between industry compensation schemes and your "legal rights" (by which they must mean your Consumer Rights Act or PRO rights - as the industry schemes are also contractual and thus legal). Only the industry compensation schemes are subject to a total cap of 100% of the fare paid.

However, it's worth noting that the maximum delay compensation payable under the PRO is actually 25% of the cost of your return, as it's 50% of the fare paid for the disrupted journey. In the case of return tickets, the legislation clearly states that the fare paid in either direction is deemed to be 50% of the cost of the return.

I pointed out that regardless of any European Regulations, they were legally obliged by the RPO to pay at least 50% compensation for the return journey, independent of any compensation paid for the outward journey. The payment they had made previously was clearly stated as being compensation for the delay to the outward journey, with no mention of the return journey. The RPO also makes it clear that the outward and return journeys are to be treated separately, and includes no provision to limit compensation as they were doing.

Correct.

I also pointed out that they were also obliged by their franchise contract to pay 100% compensation in accordance with their Customer Charter, which also includes no such provision to limit compensation.

Unfortunately you're not a party to their franchise (or, to be more accurate, their National Rail Contract with the DfT) so you can't enforce any breach thereof. And as above, I'm unconvinced that their Charter needs to repeat a limitation already established in the NRCoT for that limitation to apply - even though it would be much clearer if it did.

Finally, they have issued a dead-lock letter stating that they have already paid 100% compensation, for the outward journey, and that under European practice no further compensation is due.

They are wrong in saying that, but at least you have a deadlock letter, so you can now take it to the Ombudsman if you like.

For all their witterings about European practice, I still believe that under UK law I am entitled to compensation for the delay to my return journey, independent of any compensation paid for the outward journey. In their dead-lock letter, they have stated that I can raise this with the Rail Ombudsman, however I am aware that the Ombudsman does not have a particularly good reputation on here. Has anyone had experience of raising a similar denial of compensation issue with the Ombudsman?

I've never had, or heard of, any good experiences with the Ombudsman. Their assessors seem to have little to no subject knowledge, let alone legal understanding - even though you'd have thought those would be key criteria for the job! They often seem to simply repeat whatever the TOC says, blithely accepting defences no matter how ridiculous they are.

Therefore if I were in your shoes, I really wouldn't bother wasting my time with the charade of the Ombudsman. I'd just go straight to a Letter Before Claim and then, if payment still isn't forthcoming, bring a legal claim in the County Court via Money Claims Online (MCOL).

Secondly, they failed to address my complaint that both their web-site and Customer Charter encourage people to submit claims in situations that they are going to reject, based on their secret company policy. Their guard also encouraged me to apply for compensation. They are therefore deliberately encouraging people to waste their time submitting claims that are going to be rejected, which just rubs salt in the wound after having already subjected them to delay on their journey. Again, I feel that the Ombudsman should force Avanti to adhere to what they say they in their Customer Charter, and are contractually committed to.

Thirdly, they ignored my request to raise a separate customer complaint about the unprofessional manner in which my claim had originally been handled, with me being given a string of different excuses, and several months delay, before they finally admitted the real reason why they were rejecting my claim. At one point, they sent me an email saying that I should email their Customer Services Team if I wished to appeal, only to get an email back from Customer Services saying that they were unable to deal with issues relating to Delay Repay! When I telephoned to complain about this, I was told that Customer Services indeed could not deal with Delay Repay issues, and all she could do was reopen the case to get the Delay Repay team to look at it yet again. Multiple times they claimed that they couldn’t find details of the services used, even after I had provided them with copies from Real Time Trains. As they have failed to apologise for this deliberate waste of my time, I intend to take this further. I believe that Transport Focus would be the best avenue to complain about this abysmal customer service?

Although all of the above is poor customer service, there is limited legal recourse for poor customer service. I don't think there is any mileage in pursuing this, because - if we're being realistic - nothing is going to change.

Finally, they denied my request to see a copy of their company policy on which their decision was made. As they are not a public body, I can’t force them to make it public under a FoI request. However, if I take them to the Small Claims Court, I believe that I can force them to disclose it as evidence, as they have stated in writing that it is the basis on which they are refusing payment?

They'd certainly have to disclose any evidence they were relying on, but an internal company policy that wasn't made available to you before you bought your ticket isn't going to be of any contractual relevance, so it's not going to help their case even if they did disclose it.

I would put money on them rejecting any form of discussion about the PRO, suggesting it’s a European thing not a UK thing if they left you stranded overnight. I’m actually quite surprised they’ve mentioned it. Unless I’m mistaken you’re suggesting that it was them that brought it up first and not yourself?

The PRO is retained EU law and therefore remains in effect post-Brexit, under section 3 of the European Union (Withdrawal) Act 2018.

Is the clue not in the name? Delay Repay

How can you be repaid more than you paid in the first place?

It baffles me that anyone would think they should get more back than they paid under a repay scheme - if it was openly promoted as a compensation scheme I would think differently (and I do think the railway should have a scheme that compensates for the time it wastes delaying / inconveniencing passengers but that’s different debate).

The name of the scheme has absolutely nothing to do with it. It's a delay compensation scheme regardless of branding.

 

[furlong]

32.2 has some possible ambiguity - "a train service" - no reference to "total" i.e. the limit applies separately to each set of losses related to each delay

 

[sheff1]

It baffles me that anyone would think they should get more back than they paid under a repay scheme - if it was openly promoted as a compensation scheme I would think differently

It is openly promoted as a compensation scheme. See this from Avanti's Passenger Charter (my emphasis)

If your train is delayed or cancelled, you may be entitled to claim compensation under our Delay Repay scheme.

However, although in the wider world compensation can and often does exceed any amount paid, in the specfic case of claims under industry arrangements for delays on rail journeys the NRCoT states that you can only recover up to the price of your ticket. There is an argument to be made that "recover" is not compatible with "compensation" but pursuing that argument will likely be a lengthy process.

 

[island]

Avanti is correct.

NRCoT 32.2 states that DelayRepay is limited to recovering up the the price of your ticket. Having already been paid back the price of the ticket, you are not entitled to any more.

 

[Starmill]

if it was openly promoted as a compensation scheme I would think differently

It is.

Compensation​

If you are travelling and arrive late at your destination due to a cancelled or delayed service, you may be able to claim compensation. You will need to request compensation directly from your train company.

Compensation will depend on:

• which train company you travelled with – different companies have different schemes, but they all offer compensation
• the type of ticket you have – for example, compensation for a single Day ticket is calculated differently than that for a 7-Day Season ticket
• the length of the delay in arriving at your destination – each train company has its own compensation threshold, which will be detailed in their Passenger’s Charter on their website. For example, if you are delayed by over an hour, you will generally receive more compensation than if you were delayed by 15 to 30 minutes

Compensation and refunds for train tickets | National Rail

If your train journey is cancelled or delayed you may be entitled to a full refund from the retailer of your ticket, or compensation from the train company that caused the delay.

www.nationalrail.co.uk

Both the website and the Conditions make this clear.

However, as @Watershed has already pointed out, nothing really turns on the name.

However, although in the wider world compensation can and often does exceed any amount paid, in the specfic case of claims under industry arrangements for delays on rail journeys the NRCoT states that you can only recover up to the price of your ticket. There is an argument to be made that "recover" is not compatible with "compensation" but pursuing that argument will likely be a lengthy process.

I think it's easy to forsee circumstances where more than the face value of the ticket is due in damages, which is all compensation under 'Delay Repay' really is: a form of liquidated damages.

By claiming under 'Delay Repay', you would usually be giving up your right to claim other damages arising from the fact that the service you received got you to your destination late. To put it another way, an argument could be made that the consumer had suffered a loss greater than the face value of their ticket, but only if they didn't submit a claim for Delay Repay.

Another way of looking at this is that sometimes Delay Repay will return less money to a negatively affected consumer, but in exchange, it's easier and quicker to claim for, and at least in theory it should result in repayment more quickly.

Your argument of being entitled to additional compensation under your statutory rights in UK legislation, on the other hand, has a slight bit of weight being it, but good luck trying to exercise it.

I think that there could have been a strong claim here, either for direct losses using a value of the OP's time at an hourly rate, or potentially under the Consumer Rights Act, but sadly I also think it's too late now because the OP has received a repayment under Delay Repay.

I've never had, or heard of, any good experiences with the Ombudsman. Their assessors seem to have little to no subject knowledge, let alone legal understanding - even though you'd have thought those would be key criteria for the job! They often seem to simply repeat whatever the TOC says, blithely accepting defences no matter how ridiculous they are.

The Ombudsman can be useful I think in cases where the provider of the service fails to follow their internal policy, and they say something wrong which they then agree to review. The Ombudsman is therefore in effect useful for raising the pay grade at which a complaint is being considered, but nothing more than that. Certainly, just as you say, I wouldn't want to rely on them for adjudication. In this case I can't see any value in referring the case to the Ombudsman, although that choice is of course for the OP and them alone.