Delay Repay during strike action with pre-existing tickets - disagreement with TOC

Discussion in 'Fares Advice & Policy' started by maxbarnish, 13 Jun 2019 at 10:28.

  1. maxbarnish

    maxbarnish Member

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    I have separated this out from a previous thread, so that my specific question does not take that thread off course.

    I have some disappointing and surprising news from SWR regarding their strike timetable. I bought an advance ticket on 21 June from Cranbrook to Welling leaving at 17.39 prior to the announcement of strike action. I received valued advice on here that any Delay Repay would be based on the itinerary on the booking confirmation. However, SWR have told me that they will assess it based on the revised strike timetable irrespective of the fact that I bought my ticket prior to the strike being called. Can anyone provide me 'chapter and verse' from the NRCoC or contract law as to why the delay should be assessed based on the booking confirmation? That feels right, but as things stand, I can't make a convincing argument to them. They have also suggested I get an earlier bus than my train time to avoid a missed last of night risk - I don't want to go early. I am finding SWR are getting rather difficult these days. But I want to stick solely to facts. I would like to write to customer services about this issue after my journey.
     
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  3. ForTheLoveOf

    ForTheLoveOf Established Member

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    Well, there are two ways you can proceed, really. You can either heed their advice, take an earlier bus than your scheduled train and therefore avoid (subject to delays to the bus!) the last train of the day. You would likely receive no compensation at all for having to endure a longer journey, an earlier start, and a bus instead of a train. But it is the only option which can reasonably be expected to avoid missing the last train of the day later on in the journey.

    The other way which you can proceed is to turn up at the station in time for your originally booked train and to take the next available services onwards to Welling, whenever these be. If you end up missing the last train of the day at some point on the route, and there is no alternative route which can avoid this, then every train company which is reasonably in a position to assist you is under an obligation to do so. This could be in the form of providing you with overnight accommodation or providing onwards transport (likely by taxi). You would also be entitled to delay compensation if you end up being delayed as a result.

    Unless there was a specific reason why you could not arrive late, or could not take alternative transport (e.g. having a bike, a dog, etc.), then I would always choose the latter option. I recognise, of course, that not everyone wants to do so! If you take the latter option it would, however, be advisable to have a copy of your booked itinerary on you (whether on paper or on your phone) in case it is suggested you did not turn up in time, and it would also be advisable to have the means to pay for alternative transport and/or accommodation in the not unforeseeable event of staff refusing to assist you.

    Your legal entitlement to be transported in line with your itinerary is unaffected by any industrial disputes SWR may be having, much though they may attempt to claim to the contrary. It's a principle of contract law so trite that I hardly think there is any case law on the matter, that contracts are binding once made, and (subject to any specified rights of cancellation, which do not exist in the NRCoT for the train company) that damages are due if the contract is broken.

    I do not think that SWR could credibly claim that the announcement of industrial action is a circumstance that so substantially changes the circumstances that it constitutes a frustration of contract (allowing them to opt to discharge the contract). The industrial dispute has been ongoing for many months, even years, and yet SWR have still seen fit not only to publish the normal timetable, but to sell tickets only valid on specific trains in the timetable, i.e. thereby guaranteeing that specific trains will run. They have no-one else to blame for any predicament they find themselves in as a result (in terms of their liability to the passenger).

    Any claims they may make regarding delay compensation not applying where they change the timetable is nothing more than bluff and bluster. The NRCoT provides that the minimum level of compensation (50% of a single for a 60+ minute delay) is only not applicable where the delay is "entirely outside the rail industry’s control". An industrial dispute could hardly be more in the control of the train company (they could resolve it at any point by agreeing to the union's demands, if they so desired). Their Passenger's Charter cannot override this minimum guarantee, and indeed even if it attempted to do so, it would be ineffectual in attempting to do so (as, effectively, it would mean that the train company can unilaterally vary the contract without compensation, an entirely ludicrous proposition).

    If you do have any difficulties in claiming any compensation you're due, or costs you incur, please come back here and let us know.
     
    Last edited: 13 Jun 2019 at 10:53
  4. Silverdale

    Silverdale Member

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    On the other hand, NRCoT is entirely non-specific about the advertised time against which a delay is to be determined.

    Even if the strike timetable operates to time, the OP must either start their journey at Cranbrook over an hour earlier than originally planned, or if starting from Cranbrook at 17:39, and catching the 17:45 replacement bus, arrive at Welling one hour later than planned. I would be surprised if SWT determined that in respect of a ticket purchased prior to that timetable being published, that didn't represent disruption entitling the OP to a full refund of the single ticket price, should they choose not to travel.

    But, given that SWR's Delay Repay scheme is to compensate at 100% of the single ticket price for a delay of 60-119 minutes, if the OP did travel and delay was calculated against the normal, pre-strike timetable, he would effectively travel for free, even if the strike timetable operates to time.

    So, if you are correct that is the case, and having bought the ticket pre-strike, the OP is entitled to his money back, whether he travels or not. That also seems a somewhat ludicrous proposition.


    But the OP still has his consumer rights - an expectation that the service will be performed with reasonable care and skill. Does publishing and operating a strike timetable demonstrate a lack of care and skill? Even if it does, and the remedy is a price reduction, would it be 100%?

    The OP could also claim against SWR for breach of contract. The first hurdle to overcome there would be for the OP to show that at the time the ticket was purchased, strike action planned for the day the OP intended to travel was something that SWR knew or should have known was likely to happen. The second would be for him to show what damage he suffered by choosing to travel in full knowledge of the strike timetable. Is it equivalent to the damage suffered by a similar 60 min delay, when the expectation is the normal timetable?
     
  5. Bletchleyite

    Bletchleyite Veteran Member

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    In any case, Delay Repay is non-fault, isn't it? As in it is paid regardless of fault?
     
  6. yorkie

    yorkie Administrator Staff Member Administrator

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    Absolutely. Delay Repay applies to the journey and applies regardless of the cause and whether or not it was "in the control of" the rail industry or not.

    I recommend forwarding the booking confirmation email to SWR and making it clear to them that the contracted arrival time was not met, and that the delay you experienced should be measured as per the contract.

    If SWR won't budge, the next step is to contact the Ombudsman: https://www.railombudsman.org/making-a-complaint/start-a-complaint/

    Let us know how you get on.

    In the meantime, there isn't anything else we can really add.
     
  7. Silverdale

    Silverdale Member

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    But most (all, now?) TOCs don't actually have any 'cause of delay' exclusions in their Delay Repay terms or Passenger's Charter. SWR don't, so it will offer compensation even if the cause of the delay/cancellation was outside its, or the rail industry's, control.

    What SWR do say is
    It's this which goes to the core of the OP's query about Delay Repay and SWR's strike timetable. It could be held that NRCoT is ambiguous - that 'delay' could mean either; a late arrival versus the timetable published at the time the ticket was purchased, or; versus the timetable in place at the time of travel, if that was different. SWR's Passenger's Charter removes that ambiguity.
     
    Last edited: 13 Jun 2019 at 18:22
  8. ForTheLoveOf

    ForTheLoveOf Established Member

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    It would be ludicrous if SWR were to say the timetable in place at the time of travel determines the level of delay. That timetable has no relevance on any contract you have previously made, and neither the NRCoT nor any other document gives them the ability to unilaterally change the term of the contract determining the arrival time.

    It would effectively be saying that they reserve the right to unilaterally determine when they are and aren't in breach of contract. That's likely to see short shrift if it goes formal (to the Ombudsman/Court).
     
  9. Silverdale

    Silverdale Member

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    It would be wrong for SWR to say that the timetable in place at the time of purchase of a ticket has no relevance. It's relevant to a customer's entitlement to a full refund, if any subsequent amendment to the timetable means they decide not to travel.

    What is ludicrous is to suggest that having declined that contractual entitlement and in full knowledge of the amended timetable, the customer can decide to travel anyway, but on the basis that they can still claim compensation for any variation from the timetable which was in force at the time the ticket was purchased, as if it hadn't been amended at all.

    They can't. It's called making an informed choice.
     
  10. MotCO

    MotCO Member

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    To give an extreme example, if the timetable was amended after the OP purchased the ticket such that there was only one train on that day, is it reasonable to expect the OP to travel on that train?
     
  11. Silverdale

    Silverdale Member

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    The OP can choose to travel on it if they want. If they choose not to, they are entitled to a full refund of the fare paid.

    If they do choose to travel on it, is it reasonable to expect their fare to be refunded?
     
  12. Haywain

    Haywain Established Member

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    Regardless of whether SWR are right or not in what they are saying, I don’t think the OP has a legitimate Delay Repay claim 8 days before they are due to travel. It may turn out that the strike timetable gets the OP to their destination without any qualifying delay.
     
  13. causton

    causton Established Member

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    No, not a refund.

    But they should expect compensation as per SWR's stated delay repay process, which may equal 100%.

    To the customer, a refund and compensation may look like the same thing, but in reality they differ.
     
  14. ForTheLoveOf

    ForTheLoveOf Established Member

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    So you are saying that any contracts passengers make with a train company in advance are effectively worthless, since the train company can, despite the lack of a term to this effect in the NRCoT, simply give the passenger the options of not travelling at all or being delayed without compensation? What would even be the point of having contracts or Delay Repay if that were the case?

    Luckily it's not. The informed choice is between deciding not to travel as you correctly say, but the alternatives are to depart earlier, arrive on time and probably receive no compensation, or to turn up for the booked departure time, and claim compensation if you are delayed.

    I really don't get where this notion comes from that TOCs can just change the timetable after bookings have already been made on the basis of what they have published - and that they can do so entirely free of any consequences. At what point does this no longer become acceptable? 3 months out? 1 month out? A day out? 10 minutes before the train departs? It's a slippery slope and fortunately it is not one that the TOCs can rely on, as it's simply not how contracts work.
     
  15. Silverdale

    Silverdale Member

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    SWR's stated Delay Repay process is that where an emergency timetable or amended timetable is in place, delays are calculated according to the revised timetable.
     
  16. Silverdale

    Silverdale Member

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    Not free of consequences. If there is a material change to the service offered, the customer is entitled not to proceed and receive a full refund. This notion is one of the basic consumer rights.
     
  17. joncombe

    joncombe Member

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    Agree 100%. I'd further add that having booked a ticket that was valid only on a specific train, printed on the ticket, that SWR should also be contacting those customers to tell them the train will no longer be running. If you've booked through their website and provided contact details, I don't understand why this is so hard for them to do, but no TOCs seem to do it and seem to consider that "the information was on our website" is an acceptable way to say they have informed customers. I guess if you only travel occasionally, you might be in the habit of checking websites of companies you've booked to travel with but most people would I think quite reasonably assume if they would be informed of known disruption to their journey in advance. Just as I'd expect that if I booked a hotel and they could no longer accommodate me, they'd let me know or if an airline cancelled or re-scheduled a flight they'd let me know.

    In the case you book an Advance ticket it's valid on that specific train, you have to pay at the time of booking and you have to pay a fee to subsequently change if you decide you want to travel at a different time. Part of the deal is you get a cheaper price but you lose flexibility. But it appears this lack of flexibility only applies one way.
     
  18. MikeWh

    MikeWh Established Member Senior Fares Advisor

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    I think the crux of this issue is the difference between a passenger who has booked travel in advance and one who turns up on the day expecting the normal timetable. In the former case the original timetable must be the one used to calculate delay repay, while in the latter case it is clear that the timetable operating on the day is the one to be used.
     
  19. Silverdale

    Silverdale Member

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    But why must that be the case? That is the question to which the OP seeks an answer.

    The OP is aware of the strike timetable. They are not obliged to use the tickets they have, but if they do, the TOC's argument would be that they are implicitly accepting the amended terms of their contract and should only be entitled to the same compensation as the passenger who turns up on the day to purchase their ticket.
     
  20. MikeWh

    MikeWh Established Member Senior Fares Advisor

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    Because a contract was formed on the basis of the original timetable.
     
  21. Bletchleyite

    Bletchleyite Veteran Member

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    FWIW VTWC certainly coughed up a fairly large chunk of Delay Repay during the Carlisle flood bustitutions for journeys booked before that happened.
     
  22. Silverdale

    Silverdale Member

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    But the contract has been changed by one party. This is not unusual in the supply of services. No question that if the other party does not want to proceed, they are made whole, which might simply be a refund. But if they do decide to proceed... ?

    Why are they entitled to have their amended contract cake and also eat their original contract compensation?
     
  23. infobleep

    infobleep Established Member

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    Surely if one amends a contract, they must inform the other party by contacting them. If the OP had not contact SWR, woild you still hold the same views, given that I doubt SWR would have contacted the OP?
     
  24. Silverdale

    Silverdale Member

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    If it's the kind of contract which both parties sign, then yes and there will almost certainly be a clause or clauses in the contract to that effect.

    But that's not the case with a rail ticket. Unless they're retaining intrusive amounts of personal data on National Rail ticket holders as a matter of course, I doubt that SWR could contact all their customers individually.

    But you make a good point. If a poster was to explain why - despite all the publicity and having booked their ticket, knowing their date of travel - they could not reasonably have known about an amended timetable until they arrived at the station, on the day, I'd have a different view about the compensation they should receive having decided to travel.
     
  25. infobleep

    infobleep Established Member

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    Of course if someone has an advanced purchase ticket, then their personal details are known by a retailer. Thus might not be SWR though. Could SWR contact retailers and get them to contact their customers? Might as well be a blanket e-mail.

    I had two concerts cancelled on me in 2002. Both venues left answerphone messages or sent me text messages. The concerts held around 2,000. How many advances would be sold Tuesday to Saturday, which included travel on SWR trains? More than 4,000?
     
  26. ForTheLoveOf

    ForTheLoveOf Established Member

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    I'm really struggling to understand whether you are just trolling there or whether you're serious. The NRCoT does not contain provision for TOCs to change the terms of the contract after it has been made. Thus the TOCs have no right to make unilateral changes to the contract. The TOC can inform you of their intention to break the contract but it doesn't in any way affect their liability, and it certainly doesn't absolve them of their liabilities unless you choose to take up their offer of rescinding the contract and receiving a refund.

    There is no "have your cake and eat it" here on the part of the passenger. It is perfectly reasonable to expect a TOC to uphold their side of the contract once it has been made. It is the TOCs who want to have their cake and eat it, by contracting on certain agreed terms, which include the fact that if the passenger no longer wants to travel of their own accord they get no money at all back. And yet, when the TOC no longer wants to transport the passenger, they want to have the ability to simply give the passenger a refund and nothing more if they agree to abandon their journey, or alternatively to 'graciously' let them travel, be delayed, and get no compensation at all. That's an utterly ludicrous proposal and, as I've said, it's simply not how contracts work. Both sides are bound by them and you can't simply change them when they no longer suit you.

    It is beyond all logic that the TOCs are immune to prosecution for actively having policies of evading their contractual debts in the form of correctly owed delay compensation, when passengers would receive criminal records and fines if they attempted anything of the sort.
     
  27. Qwerty133

    Qwerty133 Established Member

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    I think it is you who is (professionally by the amount of time you spend doing so) trolling. It is possible to buy a train ticket 365 days in advance and it is not unknown for train companies to publish an annual timetable. By your interpretation, TOCs would have to have a complete and full replacement timetable in place for each event of engineering works at least a year in advance to avoid paying compensation. This is both unfeasible in many cases and also quite simply absurd to suggest.
    Honestly I cannot see any judge in the land allowing any claim for compensation when an amended timetable is known about weeks in advance and full refunds are offered to those choosing not to travel, especially when the cause of the amended timetable is outside that of the rail industry (which whether you believe so or not industrial action would be classified as). It is not unreasonable for either party to nullify (or amend with the (implicit or explicit) agreement of the other party with the option of the contract being nullified) a contract several weeks in advance of fulfilment if major factors outside of their reasonable control occur that makes the original contract impossible to fulfil. Personally I believe that TOCs could legally get away with simply cancelling all contracts for the dates of industrial action and not even attempting to run a reduced or replacement service so if anything TOCs are exceeding their obligations by doing this especially as it often causes additional expenses to be occurred by the TOC
     
  28. ForTheLoveOf

    ForTheLoveOf Established Member

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    If they decide to publish a timetable this far in advance that's entirely their own choice and they do so at their own risk. If TOCs are not happy with the length of time in advance with which tickets are sold, they should review the contractual mechanisms that permit third party agents to do so on their behalf.

    It's their choice as to whether they run services as per the timetable that was published at the time people booked, or whether (as is far more likely, especially in view of the fact that many people won't buy a ticket until the day of travel) they pay compensation for any delays incurred by people who booked before the timetable changed.

    I don't see what the relevance is of how far the timetable change is published in advance. A contract has been made on a certain basis, and as I've said before, the train companies have every right to insert a clause into the NRCoT that absolves them of liability if they wish to amend the timetable after the sale has been made. That they have not done so is not the passenger's fault, and accordingly the passenger is entitled to rely on the itinerary they were given when they booked. This is, of course, quite apart from the fact that the actula amended timetables in the case of strikes are often only published a few days, or even just one day, before.

    The train companies would be in breach of contract if they didn't do so, so it's not as if they're offering passengers any great favour by allowing them to rescind the contract upon an anticipatory breach.

    The European Court of Justice held that, in the similarly aligned area of law of flight compensation, even a wildcat strike was not an "extraordinary circumstance" exempting the airline from paying compensation for delays. I can see no reason why it would be any different for something as 'mundane' as a planned and announced formal strike. So clearly your views of what a judge would think is not aligned with the true legal position!

    At the end of the day, it is the travel provider's responsibility to ensure they provide all resources necessary to abide by the contracts they have made; the only kinds of things that can really be considered "entirely outside the control of the rail industry" would be something like freak weather. It is not the passenger's problem if the TOC is unable to staff its trains properly.

    You are alluding to the concept of "frustration of contract", which, if it applied, would mean that the TOC would have the ability to discharge the contract. But this is clearly inapplicable here - frustration only comes into it if there is an unexpected change in circumstances which is so significant that it precludes the completion of the contract. The industrial dispute has been ongoing pretty much since the start of SWR's franchise, so there is nothing unexpected about a strike occurring

    Quite apart from which, the strike is entirely within their control - they can simply agree to the union's demands (however unpalatable they be to the company), or even just start negotiating in a reasonable manner, and the union would have no grounds for the strike. Furthermore, the strike does not preclude the completion of the contract, it merely means that they will find it harder to ensure they abide by the promised times of travel because they will need to bustitute. It is about as far from frustration as it gets, really!

    Well, in that case it's a good thing you're not a judge deciding on a case like this! Fortunately we have rid ourselves of such consumer unfriendly legal positions many years ago.
     
  29. infobleep

    infobleep Established Member

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    Some of these service changes are only made on the morning of the strike, aka overnight.
     
  30. maxbarnish

    maxbarnish Member

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    Thanks to everyone for their comments.

    Apologies for the slow response from me as OP. I wanted to read everyone's comments properly. This is clearly quite a complex issue. There seems some consensus that the calling of the strike post buying the ticket does not change the contract under which it is bought.

    I have also had time to consider my options more carefully including the purpose of my visit. My purpose is to visit family and my overriding priority shall be to make that a success. After a lot of thought, and consulting those I am visiting, my intention is to go earlier, knowing that I won't likely be able to claim for a delay but that I will arrive in decent time for those collecting me at Welling. This is as much as human issue as a railway issue. Your comments have been really helpful.

    There is another factor which has arisen after I posted. I will likely be working in Exeter that day. When that is the case, I typically add on a single from Exeter Central to Cranbrook, which I split ticket to the advance I hold. It's been noted that I can arrive on time in London if I go from Exeter Central only 20 minutes earlier than scheduled. This invokes an additional complication regarding split ticketing. Since the NRCoC only permit split ticketing where the train stops at the splitting station. As I am extremely busy, one of those I am visiting has offered to ask the TOC for me to get permission to use this combination of splits on what shall be the 17.09 service from Exeter Central to Salisbury, changing there for London Waterloo. I am personally unsure if this permission will be secured, so I am retaining plans B and C. But the person I am visiting thinks this permission will clearly be given as on a strike day, they'll just want to get people moving. I certainly won't do this without getting permission in advance.

    So my reserve plans would be -
    1. Abandoning that itinerary and claiming a refund under the terms some of you suggest - and getting a different ticket for the Paddington route - which I am disappointed SWR is not approving this time having done it for anyone West of Crewkerne the last time I travelled from Cranbrook to London on a strike day
    2. Getting the bus from Cranbrook at 17.45 and following the suggested itinerary from SWR - and seeking to claim for the delay using the points some of you raise.

    Not sure which of these 2 I'd go for yet, because I'm still hoping for the split to be approved.
     

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