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Changing conditions of carriage/travel

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Bensonby

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I was interested to note that TFL have changed their conditions of carriage to include the requirement of face coverings. This means that after the 19th of July you must still wear one despite it no longer being a criminal offence not to. Quite aside from the rights and wrongs of this position it got me thinking about the status of the CoC as a contract between the company and the passenger. If someone has purchased a ticket under the old CoC then do they continue to apply or is there a mechanism to enforce the new CoC on the date of travel (I.e. is there something in the agreement between the passenger and the company that says the CoC are subject to change and the most up to date ones will always apply?)

If the agreement is what was in place when you purchased the ticket applies then you could have different people travelling under different conditions on the same day. Specifically, you could have some people wearing a mask and some, quite legitimately, not obliged to, creating all sorts of issues.

Note: I’m not commenting on whether or not I agree with mask wearing or whether one should wear one or not. Im purely interested in the technical legal position.
 
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Tazi Hupefi

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Old conditions apply, which in this case means a ticket must be bought prior to 7th June, when the first changes were made by TfL.

I imagine, in reality, that this (strong) legal basis will be entirely worthless if you were stopped, as I doubt TfL will make that clear to staff who actually enforce these things.

They can still refuse you travel, but you would then be able to claim breach of contract. However, I don't believe a District Judge would award more than a token amount plus the filing costs given the wider circumstances and rationale for enforcing masks in the first place.

Conversely, anyone buying a ticket now would have the mask requirement for the entire validity of their ticket, which could be 12 months, even if the conditions change to remove it at a later date. However, clearly, this would simply not be enforced by TfL, if they did remove the mask condition.
 
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Tazi Hupefi

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On what basis?
It's their company and it's still a business at the end of the day. Anyone can breach a contract, it just opens them up to legal action if they do. Although as above, the remedy is likely to be fairly small.

Only case where they would be in real trouble is if the refusal conflicted with a requirement under the Equality Act.

In any event, their notice under Byelaw 12 is yet to be rescinded.
 

island

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In any event, their notice under Byelaw 12 is yet to be rescinded.
The byelaw 12 notice only applies to stations, not trains – and it is of questionable effectiveness there as it must be displayed “on or near” the area where it is to apply. A notice in the ticket hall is unlikely to be “near” a platform in a lot of stations…

I agree with the previous points that the change in conditions cannot apply to people holding a ticket from before 07•JUN•21. TfL would be in breach of contract if it refused someone travel in those circumstances, the remedy for which would be damages. As mentioned above, the damages would likely be nominal.
 

Watershed

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I think another interesting question arises if, say, you were to buy a ticket for travel on the Overground from a non-TfL station (or your average online retailer).

I don't see how TfL can purport to apply their own Conditions of Carriage to such a journey. Even the most eagle eyed passenger, willing to trawl through the entire NRCoT, would not be directed to any such CoC.

I also wonder whether TfL actually has any notice indicating that the Tfl CoC apply to tickets sold at their TVMs. Maybe I just haven't looked hard enough, but I don't recall seeing any such thing previously.

Obviously that is of no assistance if using Oyster/contactless, since such travel is inherently subject to TfL's conditions, and paper tickets for intra-London journeys are usually very expensive. But it could be a 'way around' this requirement.
 

jumble

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I agree with the previous points that the change in conditions cannot apply to people holding a ticket from before 07•JUN•21. TfL would be in breach of contract if it refused someone travel in those circumstances, the remedy for which would be damages. As mentioned above, the damages would likely be nominal.
I wonder how this applies to freedom passes and their ilk
Sadiq says about his enforcement officers
They will be making sure if anyone’s not wearing a face mask, they will be reminded of the importance of doing so.

All I know is that at Bond Street a few weeks ago there were 6 or 7 of them doing nothing of the sort during a 20 minute window when 15 or so maskless passed them


 

talldave

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Obviously that is of no assistance if using Oyster/contactless, since such travel is inherently subject to TfL's conditions, and paper tickets for intra-London journeys are usually very expensive. But it could be a 'way around' this rerequirement.
Are the CoC that apply for PAYG Oyster the ones in force at the time of barrier activation or those when the balance on the card was purchased?
 

Watershed

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Are the CoC that apply for PAYG Oyster the ones in force at the time of barrier activation or those when the balance on the card was purchased?
Good point. The CoC say that "when you travel on our services, when using pay as you go, you enter into a legal agreement with us" which infers the former, and I would be minded to agree with that, as Oyster balance is refundable.
 
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Specifically, you could have some people wearing a mask and some, quite legitimately, not obliged to, creating all sorts of issues.
I've wondered this, as it's an interesting hypothetical. Even at the moment, when facemasks are required on services, there is no legal requirement to poses any documentation to demonstrate an exemption or even disclose the reasons for this (one doesn't need to consult a medical professional to establish said exemption; it's entirely self-declared).

If it's that woolly at the moment when legislated by the government, how are TfL actually planning on enforcing it when it's merely part of their CoC? Will their staff expect passengers to carry their medical records with them; will people declaring an exemption be required to submit a doctor's note to revenue protection if fined; are they planning on having a mandatory accreditation scheme for those exempt? All of those would be as impractical, probably illegal and hostile in practice as they sound on paper.

Regardless of the debate of whether it is/isn't the right thing to do, it just seems entirely unenforceable and therefore pointless. If someone says "I'm medically exempt", what is Sadiq actually expecting his revenue protection officers to do?
 

Bensonby

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The concessionary pass question is an interesting one: yes, there is no consideration, but the cards come with T&Cs which state that they are issued in accordance with the Conditions of Carriage (or similar wording). Is that the conditions that apply when they were issued or the ones in force today? Or is there wording or a mechanism that says something like "continued use implies acceptance of the new T&Cs"?

I've wondered this, as it's an interesting hypothetical. Even at the moment, when facemasks are required on services, there is no legal requirement to poses any documentation to demonstrate an exemption or even disclose the reasons for this (one doesn't need to consult a medical professional to establish said exemption; it's entirely self-declared).

If it's that woolly at the moment when legislated by the government, how are TfL actually planning on enforcing it when it's merely part of their CoC? Will their staff expect passengers to carry their medical records with them; will people declaring an exemption be required to submit a doctor's note to revenue protection if fined; are they planning on having a mandatory accreditation scheme for those exempt? All of those would be as impractical, probably illegal and hostile in practice as they sound on paper.

Regardless of the debate of whether it is/isn't the right thing to do, it just seems entirely unenforceable and therefore pointless. If someone says "I'm medically exempt", what is Sadiq actually expecting his revenue protection officers to do?

Indeed, the government guidance for the legislation said that people "didn't need to prove" their exemption (or words to that effect). Though, of course, in creating a criminal offence with statutory defenses the normal legal position is that once the prosecutor proves the offence is complete then the burden of proof falls on the defendant to prove their defense on the balance of probabilities. It would be interesting to see a court judgement regarding someone who claimed an exemption but couldn't prove it and relied on the government advice that they didn't need to!

All in all, the whole situation is a mess legally speaking.
 

Watershed

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Will their staff expect passengers to carry their medical records with them; will people declaring an exemption be required to submit a doctor's note to revenue protection if fined; are they planning on having a mandatory accreditation scheme for those exempt? All of those would be as impractical, probably illegal and hostile in practice as they sound on paper.
TfL won't have the power to 'fine' anyone anymore. At worst, they will be able to refuse travel or make you leave the train/station.

Regardless of the debate of whether it is/isn't the right thing to do, it just seems entirely unenforceable and therefore pointless. If someone says "I'm medically exempt", what is Sadiq actually expecting his revenue protection officers to do?
It puts them in an even more difficult position than today. If they refuse travel or remove someone who is "exempt" due to something that qualifies as a disability under the Equality Act, they might face substantial liability - civil or potentially even criminal.

However, this depends on TfL having actual or constructive knowledge of the disability, or the circumstances which amount to a disability. So simply saying "I'm medically exempt" would probably be insufficient - you would probably have to say something like "I have [Condition X] hence I can't wear a mask". Obviously that's still going to be humiliating for a lot of people, but anything less than spelling out the disability/circumstances risks being unable to raise a claim as above.

Realistically, anyone who says "I'm exempt" and doesn't behave like a whazzock is likely to be absolutely fine. But for all Khan and his ilk go on about being "inclusive" - here they are engaging in the most barefaced (ha!) of discrimination. It's utterly disgusting.
 
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matt_world2004

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I was interested to note that TFL have changed their conditions of carriage to include the requirement of face coverings. This means that after the 19th of July you must still wear one despite it no longer being a criminal offence not to. Quite aside from the rights and wrongs of this position it got me thinking about the status of the CoC as a contract between the company and the passenger. If someone has purchased a ticket under the old CoC then do they continue to apply or is there a mechanism to enforce the new CoC on the date of travel (I.e. is there something in the agreement between the passenger and the company that says the CoC are subject to change and the most up to date ones will always apply?)

If the agreement is what was in place when you purchased the ticket applies then you could have different people travelling under different conditions on the same day. Specifically, you could have some people wearing a mask and some, quite legitimately, not obliged to, creating all sorts of issues.

Note: I’m not commenting on whether or not I agree with mask wearing or whether one should wear one or not. Im purely interested in the technical legal position.
The conditions of carriage were changed when the facemask requirement came in tfl used a local bylaw to enforce face covering rules rather than the national bylaw.
 

greatkingrat

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A Freedom Pass is free and there is no contract to travel as such, because no consideration has been given by the recipient.
The Freedom Pass may be free, but anyone with a 60+ Oyster Card will have paid something for it.
 

Bensonby

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The conditions of carriage were changed when the facemask requirement came in tfl used a local bylaw to enforce face covering rules rather than the national bylaw.
The current iteration is dated June 2021 to make it part of the CoC. This does not create a criminal offence. To my knowledge, the previous mechanism to enforce was under the notice given under byelaw 12 (covering stations and has to be displayed) and also, presumably, by the relevant Health Protection Regulations which are soon to be defunct. Both of which create criminal offences.

Realistically, anyone who says "I'm exempt" and doesn't behave like a whazzock is likely to be absolutely fine. But for all Khan and his ilk go on about being "inclusive" - here they are engaging in the most barefaced (ha!) of discrimination. It's utterly disgusting.

I didn’t want to go into the rights and wrongs of face coverings, but I do find it odd, and somewhat unpalatable, for a local mayor to effectively “trump” National Government on an issue like this.
 
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zero

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If masks are no longer required by law, wouldn't TfL, as well as any individual transport operator and business, be able to decide what constitutes an exemption and whether they wish to require some sort of documentary proof (though Equality Act etc. would trump local conditions / byelaws)?

I have seen some shops with signs along the lines of "no entry without a mask under any circumstances, if you are unable to wear a mask please stand outside and we can serve you at the door".
 

island

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A Freedom Pass is free and there is no contract to travel as such, because no consideration has been given by the recipient.
I’m not sure that’s true. A Freedom Pass holder gives their promise to touch in and out, produce their card for inspection, and abide by the conditions, in return for which they receive free travel.

If masks are no longer required by law, wouldn't TfL, as well as any individual transport operator and business, be able to decide what constitutes an exemption and whether they wish to require some sort of documentary proof (though Equality Act etc. would trump local conditions / byelaws)?

I have seen some shops with signs along the lines of "no entry without a mask under any circumstances, if you are unable to wear a mask please stand outside and we can serve you at the door".
I think that’s best addressed in the COVID19 forum.
 
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We don’t live in a technocracy; TfL need to weigh up the relative merits of enforcing a mask against the negatives and make a balanced decision.

For example, consider how enforcing mask wearing basically renders on-train CCTV useless for identification of criminals and hence as a deterance of petty crime. Is making vulnerable people travelling by train feel less secure a price worth paying?

It isn't for this forum to try to answer these sort of questions, but my point is that a balance needs to be struck; it isn't as simple as stating that healthcare professionals wear masks, therefore commuters should.

As-per my comment above, ultimately it's pointless to even discuss any merits when the condition/rule itself appears to be completely un-enforcable in practice. I wonder if it'll be one of those quirky rules that never gets removed and becomes a pub-quiz staple in future years (did you know, you can still buy a railway ticket for a goose between Worcester and Hereford; and wearing a mask is still technically mandatory on TfL trains? etc. etc.).
 

alexjames10

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Tis all wondrous legalistic argument above but the whole of it somewhat misses the point.

TfL staff do not, or very rarely enforce the current rules. Thus any changes to the current conditions of carriage are utterly irrelevant to the vast majority of pax.
 

Cbob

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Tis all wondrous legalistic argument above but the whole of it somewhat misses the point.

TfL staff do not, or very rarely enforce the current rules. Thus any changes to the current conditions of carriage are utterly irrelevant to the vast majority of pax.
Exactly. Anyway, if you didn't want to wear a mask before, you could just claim an 'exemption' when (if...) stopped. The move is an attempt to preserve the status quo (most people wearing some sort of face covering however badly) now that national legislation is changing, and preserve the perceived confidence in the safety of the network during the current wave.
 

gray1404

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Will TfL still be able to issue fines for non compliance from 19 July or is it a case of "not travelling"?

I'm not able to find any details on the TfL site about their rules post 19 July or any exemptions that apply?
 

Tazi Hupefi

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Will TfL still be able to issue fines for non compliance from 19 July or is it a case of "not travelling"?

I'm not able to find any details on the TfL site about their rules post 19 July or any exemptions that apply?
TfL will not be able to issue fines, but depending on what happens with Byelaw 12, they could report you for prosecution instead, and then you would be fined, or offered an out of court settlement depending on how they're running things.

The safety notice under Byelaw 12(1) is not rescinded yet, and it is unclear what will happen to it from 19 July - and whilst some here doubt whether it is enforceable - I think it probably is, but I also think your chances of anyone actually enforcing it are fairly remote.

You cannot (currently) be issued a penalty for breaching a condition of travel, but you can be refused entry or asked to leave.

It's only when you then refuse to leave it gets a bit murky. Arguably ignoring them telling you to leave / refusing to leave could be a criminal offence, either under Byelaw 12(1), 12(2) and Byelaw 24 (Removal of persons) or Section 16 Railway Regulation Act 1840 (Obstruction of staff in their duties and/or wilful trespass). Again, chance of enforcement under any of these is practically nil, but I'm sure there will be a sprinkling of prosecutions / theatre cases to make a point occasionally, probably to those types of passenger who like to make a vocal point.

The exemptions list is here:


The requirement to wear a face covering on TfL’s public transport stations, platforms and services does not apply to: • Children under the age of 11; • Employees of, or persons providing agreed services to, TfL; • Police constables (including British Transport Police officers) acting in the course of their duty; and • Members or employees of the emergency services responding to an emergency. You also do not need to wear a face covering if you have a good reason not to; such as: • if you have a physical or mental illness or impairment, or a disability that means you cannot put on, wear or remove a face covering • if putting on, wearing or removing a face covering would cause you severe distress • if you are travelling with, or providing assistance to, someone who relies on lip reading to communicate • if you are travelling to avoid injury or escape the risk of harm, and you do not have a face covering with you • if you need to remove it during your journey to avoid harm or injury or the risk of harm or injury to yourself or others • if you need to eat, drink, or take medication you can remove your face covering • if you are asked to remove your face covering by a police officer or other official, for example to check your railcard.

There's a good chance that virtually any member of the public could satisfy one of those conditions if they were so inclined.

However, do remember that in the very unlikely event that it did get as far as the local Magistrates' Court - you would probably be expected to substantiate your exemption in all likelihood. However, the exemption(s) above are not exhaustive, and "You also do not need to wear a face covering if you have a good reason not to" is not defined, other than to give a list of their examples, so again, there is a lot of room for discretion (on both sides).

Finally, at least contractually, if your ticket was purchased prior to June 2021, the new conditions of travel do not apply to you. However, the Byelaw 12(1) notice or 12(2) verbal instructions still would be (if not rescinded by 19 July).
 
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island

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TfL will not be able to issue fines, but depending on what happens with Byelaw 12, they could report you for prosecution instead, and then you would be fined, or offered an out of court settlement depending on how they're running things.

The safety notice under Byelaw 12(1) is not rescinded yet, and it is unclear what will happen to it from 19 July - and whilst some here doubt whether it is enforceable - I think it probably is, but I also think your chances of anyone actually enforcing it are fairly remote.
The “safety notice” on the TfL website is most certainly not enforceable. Byelaw 12 (1) requires that the notice be affixed near the part of the railway where it is to have effect. A website is not “near” anything.

TfL’s latest communications (an email to the engineering works mailing list) correctly specified being refused travel or chucked off the train as the consequences of failing to wear a face covering.
 

Mojo

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However, the Byelaw 12(1) notice or 12(2) verbal instructions still would be (if not rescinded by 19 July).
The notice under byelaw 12 was rescinded on the 24th of July last year.

It does still exist on the TfL website as it has not been updated. It only was in force between 15th June and 23rd July 2020, the reasoning being that the original national regulations only required someone to wear a covering on, or when about to board, a public transport vehicle (ie. not on stations), whereas the regulations were amended on 24th July to require them to be worn in semi enclosed or enclosed part of transport locations.
 

Tazi Hupefi

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The notice under byelaw 12 was rescinded on the 24th of July last year.

It does still exist on the TfL website as it has not been updated. It only was in force between 15th June and 23rd July 2020, the reasoning being that the original national regulations only required someone to wear a covering on, or when about to board, a public transport vehicle (ie. not on stations), whereas the regulations were amended on 24th July to require them to be worn in semi enclosed or enclosed part of transport locations.

The website actually makes no difference anyway. It depends what was at the station etc. If you're saying there's no posters on stations referencing this it's not enforceable anyway. Glad to see it's rescinded, although it is poor that it isn't referenced as being so specifically, given the circumstances.
 

tspaul26

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I think another interesting question arises if, say, you were to buy a ticket for travel on the Overground from a non-TfL station (or your average online retailer).

I don't see how TfL can purport to apply their own Conditions of Carriage to such a journey. Even the most eagle eyed passenger, willing to trawl through the entire NRCoT, would not be directed to any such CoC.
NRCOT n.4.4 would seem to cover this off:
Some Tickets entitle you to goods or services from another party (for instance the right to travel on bus services). Where this is the case your Ticket is also evidence of a contract between you and that other party, whose own conditions will apply when using their services.

The “safety notice” on the TfL website is most certainly not enforceable. Byelaw 12 (1) requires that the notice be affixed near the part of the railway where it is to have effect. A website is not “near” anything.
And it is questionable as to whether the face-covering instruction is even within the scope of the Byelaw in the first place.
 
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Watershed

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NRCOT n.4.4 would seem to cover this off:
Yes, that is clearly applicable if your ticket entitled you to travel on London Buses, or the Underground or DLR.

But TfL Rail and London Overground are defined in Appendix A as fully fledged Train Companies.

So they aren't "another party" under 4.4, as they are one of the contracting parties to the NRCoT.
 
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