Delay Repay during strikes

Discussion in 'Fares Advice & Policy' started by flitwickbeds, 18 Jun 2019.

  1. ForTheLoveOf

    ForTheLoveOf Established Member

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    Probably nowhere near as time consuming as pursuing it through several layers of bureaucracy though! Chargebacks are also a feature of all consumer card schemes, whether debit or credit card (Visa, Mastercard and Amex, though Mastercard impose minimum transaction amount limits). Good card issuers will even let you do this online without having to phone anyone up.
     
  2. AlterEgo

    AlterEgo Veteran Member

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    Delay Repay is essentially a refund in the eyes of the law, regardless of how the NRCoT tries to explain the difference.

    Are there any cases where a service provider informs the customer in advance to say they can only deliver the contract on a variance, say a week before: "I can pick up from you and deliver this grandfather clock to your friend, but it will be at 2pm rather than midday - sorry!" - and the customer retains the *legal* option to both proceed with the service and get some or all of their money back? Under which law would this be the case?

    Normally, you can either proceed with the service (and perhaps negotiate a lower price between the two parties for the inconvenience), or say "no thanks, I don't want this any more - refund me".
     
  3. Starmill

    Starmill Events Co-ordinator

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    It is specifically allowed for in the terms of the contract to receive the service, albeit delayed by the appropriate length of time, and then get what you call a "refund in the eyes of the law" of 100% of the money paid for the service back. I'm unsure what the debate is over?
     
  4. AlterEgo

    AlterEgo Veteran Member

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    Where in the contract is it specifically allowed please, bearing in mind we are talking about an amended timetable?

    SWR's passenger charter specifically disallows this:

    Where an emergency timetable or amended timetable is in place, delays are calculated according to the revised timetable. An emergency or amended timetable may be introduced for a number of reasons, including but not limited to, for example, planned or emergency engineering work, industrial action and severe weather conditions.

    Could you tell me if this clause is illegal under any law? We have posters here who are saying it is a legal right to be informed of a future delay to a journey, travel and claim delay repay based on the original timetable. I'm trying to find out which law that is.
     
  5. FGW_DID

    FGW_DID Established Member

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    So basically you can be “delayed” without even stepping on a train?

    What absolute melt devised that system?

    Is there anybody on here that can actually explain “Delay Repay” fully (preferably someone in the industry who actually deals with it day in day out ?)
     
    Last edited by a moderator: 18 Jun 2019
  6. sheff1

    sheff1 Established Member

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    I can't say I have heard that before. Which law(s) are the relevant ones here ?

    I always understood Delay Repay to be compensation for poor delivery in much the same way an airline is liable to pay compensation for delays. In the airline case the compensation can be a significantly greater amount than the fare paid, so cannot possibly be considered a "refund". The air traveller is still entitled to be transported to their destination despite being able to get all (or more) of their money back via compensation.
     
  7. yorkie

    yorkie Administrator Staff Member Administrator

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    I did that, however they still refused. I chose not to persue it further as it wasn't worth my time and it was a low value claim. I've kept the evidence in case it's ever useful.
    The NRCoT is a fundamentally key part of the contract!
    Your post does not make sense; you appear to be confused.

    The contractual terms include the agreement to travel at the times stated as per the itinerary.

    It is recognised that TOCs may not be able to convey passengers at the contracted booked arrival time; this is where Delay Repay comes in.
    If you never step on a train (or any alternative provision in lieu of a train such as a road replacement service) you have not travelled, in which case a full refund is available.
    The right to a refund if you never step foot on a train is something that has been a key principle of the conditions for a very long time.

    Note that we are talking about two things in this thread:

    1) Delay Repay compensation if you do travel and are delayed; and
    2) A refund if you do not travel.

    There are two forum members affected by this issue who have sought advice in this thread; one is asking about compensation for a delay and the other has chosen not to travel.

    Delay Repay applies to a delay to a journey.
    The delay is measured against the booked arrival time at your final destination.
     
  8. yorkie

    yorkie Administrator Staff Member Administrator

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    Delay Repay is a contractual term if the relevant company operates such a policy; this will be a franchise requirement.

    Delay Repay applies to the delay to your journey.

    The contractual terms of the journey are determined when purchasing a ticket. When a ticket is issued in accordance with the itinerary, the itinerary is evidence of the contract.


    That is the correct wording for tickets purchased in accordance with the amended timetable.
    The relevant laws to the issues in this thread are actually a mixture of contract and consumer laws.

    The contractual terms are as evidenced in the National Rail Conditions of Travel and any documentation issued in conjunction with a ticket (such as a travel itinerary).
     
  9. yorkie

    yorkie Administrator Staff Member Administrator

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    The rail industry considers compensation and refunds to be completely different principles:
    https://www.nationalrail.co.uk/times_fares/ticket_types/121354.aspx
    The OP is asking about compensation for a journey they are making. They are seeking compensation from SWR, which they are entitled to receive.

    Another member, @james-martin, is asking about a refund for a journey they no longer wish to make. They are seeking a refund from GWR, which they are entitled to receive.

    Also see: https://www.nationalrail.co.uk/times_fares/ticket_types/72098.aspx
     
    Last edited: 19 Jun 2019
  10. AlterEgo

    AlterEgo Veteran Member

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    Refunds and compensation for air delays are subject to significant exceptions and are the subject of specific legislation, namely regulation EC/261. There is no equivalent legislation for rail travel within the UK.
     
  11. yorkie

    yorkie Administrator Staff Member Administrator

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    The relevant conditions and legislation is so different for trains vs planes that effectively no valid comparison can be made in this area (obviously people are entitled to make whatever moral comparisons they wish but in legal terms there is no value comparing them whatsoever)
     
  12. AlterEgo

    AlterEgo Veteran Member

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    I agree and we'll come back to this in a moment.

    Yes, they are, but a breach of that contract can only be remedied by looking at the rest of the contract (for the itinerary isn't the only thing that makes up the contract - this is why you may need to wait 15, 30 or 60 minutes for compensation to be payable depending on circumstances)

    Mmm, no... it's the wording at the top of the Delay Repay section of SWR's passenger charter, and does not carry any caveat that it only applies to tickets purchased under the amended timetable. It clearly is intended to apply to all tickets regardless of where they were purchased.

    We have previously established on this forum that Delay Repay and the Passenger Charter may form part of the contract with a passenger. Can we accept that the contract SWR have with passengers is only to pay Delay Repay during emergency timetables against the new timings regardless of when the ticket was booked?

    NRE says you may only seek remedy for a changed timetable under the train company's refund processes. These are outlined in the NRCoT. You cannot refund a wholly used ticket.

    It may be that the wordings I've picked up on aren't intentional, but that's how they stand.
     
  13. yorkie

    yorkie Administrator Staff Member Administrator

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    The word 'refund' has been used erroneously in that paragraph.

    It starts by saying 'compensation' and ends by referring the customer to the 'train company'; if it was saying you were not due compensation it would not state compensation and it would direct customers to the retailer if it was referring to refunds.

    Unfortunately it's not uncommon for the word 'refund' to be used when referring to compensation claims, which is problematical when the rail industry is keen to make the distinction between the two processes!
     
  14. flitwickbeds

    flitwickbeds Member

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    My understanding, before this thread, was that it's a no-fault compensation system applicable to all TOCs who operate it under their franchise agreement. That means that holders of rail tickets who travelled on a service and who arrived at their final destination later than the Delay Repay threshold (which differs between TOCs) of the TOC making the final destination call, can claim compensation (of differing levels) regardless of where the blame lies for the delay. Delay Repay also applies if a train departs your origin station early, is too busy to board so you have to wait for the next one, etc.

    It's important to note that Delay Repay eligibility is measured against the actual arrival time at your final destination, versus the timetabled arrival time at your final destination - and not the individual arrival times of the specific train. In other words, if train A departs 20 minutes late on a train-every-10-minutes service with a 15-minute threshold TOC, but the next train was on time, you're only 10 minutes late and not eligible, even though an individual train is over the threshold.

    In my eyes the "regardless of fault" aspect of Delay Repay would include strike action.

    The whole point of this thread is whether temporary timetables (for whatever reason) supercede the full timetable in this respect, particularly for people who purchased their tickets in advance of the temporary timetable being published (including annual season ticket holders).

    It's also important to note that you must self-certify that you travelled on that day and that it would be fraud to claim you did travel when you didn't and had no intention to.
     
  15. AlterEgo

    AlterEgo Veteran Member

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    I agree it’s likely it probably has been used unthinkingly, but that’s what it says! Perhaps someone from NRE can clear that up. And why isn’t it in the NRCoT?
     
  16. yorkie

    yorkie Administrator Staff Member Administrator

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    Agreed on both counts.

    It would be good if clarification was in the NRCoT, but there are many clarifications that could be there that aren't :(
     
  17. adamello

    adamello Member

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    But, (again, with exception of advance) on standard national rail services - ie not sleepers or eurostar.. you buy a ticket that is for any train within a certain time period (ie anytime on Tues 18th, or on any train not arriving in London before 10am AND not departing London between 1659 and 1900.
    you do not have an itinerary, you may select a departure time, which allows the retail systems to advise what tickets will be valid. you may even get a seat reservation for convenience, but as has been argued to death on this forum that is not compulsory to sit in, nor even on that particular service.
    Therefore for the majority of tickets sold, although timetable may have changed, you still have a valid ticket that is still valid on any of the services that are still running as per your booking.
     
  18. ForTheLoveOf

    ForTheLoveOf Established Member

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    It doesn't really matter that it's not in the NRCoT. It's a statement published on behalf of the trader (as NRE is published on behalf of all TOCs) and therefore one is entitled to be influenced by, or rely on, the statement - it then becomes a term of the contract. This comes from Section 50(1) of the Consumer Rights Act 2015.

    But even if we ignore that for a moment, it would be laughable for SWR to suggest that the disclaimer in their Passenger's Charter means they can simply change the timetable and no longer be liable to pay compensation. It would effectively give them the right to unilaterally vary the contract (and, in effect, give them the right to unilaterally judge when they are or aren't in breach of contract), and that is not a right afforded to them in the NRCoT.

    Such an alleged effect would also place the clause at serious risk of being declared an unfair and hence unenforceable term given the context of a consumer contract. This is because a clause intended to have such an effect would likely come within the ambit of paragraphs 2, 11, 12, 13 and 16 of Part 1 of Schedule 2 of the Consumer Rights Act 2015.

    And even if we ignore both of the above points, the NRCoT still guarantee compensation for delays of 60 minutes or more, with the only exemption being when the delay is "entirely outside the control of the rail industry". As I have previously explained, a strike is plainly not such a circumstance and thus no exemption applies. So it simply isn't within the remit of SWR to exclude compensation for certain circumstances.

    They couldn't credibly claim, either, that they only offer 'Delay Repay' compensation for delays based on the timetable in force on the day of travel, and if you are claiming against the timetable in force when you bought your ticket, that they instead offer 'NRCoT minimum' compensation (which has a higher delay threshold and compensation amount). No such position is made out in their charter and accordingly their attempts to exclude liability when they change the timetable is for naught.

    It is therefore clear that there would be at least three different reasons why any attempt to evade liability through that clause in their Passenger's Charter is entirely ineffectual. Of course, that will not stop SWR from incorrectly rejecting claims made on the basis of the timetable in force at the time of booking. Unfortunately there is no effective means of recourse for such widespread wilful evasion of debts and breach of contract and consumer law, as group litigation is notoriously difficult and limited in this jurisdiction.
     
  19. ForTheLoveOf

    ForTheLoveOf Established Member

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    The fact that the ticket is flexible doesn't mean you can't still rely on the timetable that was in place when you booked. SWR don't do numbered seat reservations anyway, so I don't know why you've come onto that.

    SWR are trying to have their cake and eat it on all sides. They will be being reimbursed certain expenses by the DfT (admittedly probably not all, but certainly some) that they incur. The continuation of the strike lies entirely within their control, and they could stop it at any moment by agreeing to the RMT's demands. It is purely a matter of money and commitments that they don't. And yet they also want to change timetables and incur no liability for compensation for the relatively small number of passengers who bought their ticket in advance, and thereby afforded SWR an interest-free loan on the cost of their ticket. It is not on.
     
  20. yorkie

    yorkie Administrator Staff Member Administrator

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    An itinerary is available with any ticket type, not just Advance.
    If the customer has an itinerary, this is evidence of their intended journey. Yes they may change their mind and it's not compulsory. What's that got to do with anything?
    Yes the ticket is valid, but that doesn't mean compensation isn't payable if your journey is delayed.
     
  21. sheff1

    sheff1 Established Member

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    So what is the legislation to which you alluded earlier:
     
  22. EastCoastway

    EastCoastway Member

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    @yorkie the difference between an Advance and Walkup fare is that an Advance ticket has a reservation so this could be argued to be an itinerary that they must keep (as it is the only train the ticket is valid on). I think given the notice of the industrial action similar rules to engineering work will come into play here.
     
  23. Starmill

    Starmill Events Co-ordinator

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    I don't accept this whatsoever. What about a customer who has booked an Advance ticket to a station with no service? The customer may then be forced to walk from the nearest station that does have a service, no? Sure, SWR can offer the customer a refund, but they're not obliged to take it. Walking might result easily in a delay of more than two hours. So you're saying that, in this case, there is no delay?
     
  24. ForTheLoveOf

    ForTheLoveOf Established Member

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    It is still an itinerary when you book a flexible ticket and travel on the selected service, so I fail to see what the difference is between this and an Advance. But even then, I fail to see what relevance all this has to the matter at hand.

    And whilst SWR have undoubtedly published a press release warning of the strike, which has been circulated by the press and social media, they have not published strike timetables until very shortly before the day, so I don't see how it bears any connection to engineering work changes, which are (when correctly done) announced as far out as tickets are sold.

    But even if we said that it were equivalent to engineering work (which it isn't, in its unpredictable and short-notice nature), if someone books a ticket before the effect of engineering work on services is inputted into timetables, then it doesn't matter how much notice SWR give - they still can't change the entitlement to be transported in line with the original itinerary and timetable.

    Engineering work, strikes and notice are all red herrings here. There is only one thing that matters, and that it the timetable in place when the passenger buys their ticket. That is what they are entitled to compare their actual journey to in terms of delay compensation, and no amount of notice or purported waivers can change that.
     
  25. Starmill

    Starmill Events Co-ordinator

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    A flexible ticket can also have a reservation.
    An itinerary and a reservation are two different things.

    The only difference you've identified is that an Advance ticket is valid on the booked train only.

    The industrial action was announced with a few weeks notice. Nearly all engineering work is announced with more than three months notice. Major work is supposed to be planned long before tickets go on sale. SWR commonly amend their timetables for weekend engineering work a few days in advance, but that's not the way it's supposed to work.

    In cases where the timetable is amended at the last minute, after the customer has paid for tickets, just a few days before travel, whether this is caused by engineering work or by a crew shortage or by industrial action, there is still a need to pay delay compensation based on the timetable as it stood when tickets were sold.

    If SWR don't like that, they must ensure no tickets are sold in advance. This is entirely within their remit, and their power, to do.
     
  26. Silverdale

    Silverdale Member

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    Can SWR control/restrict the sale of National Rail tickets by others?

    Even if they could ensure no tickets were sold in advance, the situation of a timetable requiring to be amended after a ticket was purchased could still arise for travel with return portions of tickets having a month's validity.

    We might agree to disagree about whether the timetable in force at the time of purchase has any relevance to the way Delay Repay is calculated, but the suggestion that ticket sales should be restricted (until the day of travel?) isn't really a solution for either SWR or their customers.
     
  27. Starmill

    Starmill Events Co-ordinator

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    Indeed. The actual solution is very easy. Confirm the timetable 3 months in advance and then don't change it. If small changes are unavoidable, the delay compensation bill will only be very small.

    SWR plainly rejected this hypothesis a very long time ago, though. They'll have to accept the associated costs of that.
     
  28. maxbarnish

    maxbarnish Member

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    If anyone manages to get SWR to agree to this post-hoc or via the Ombudsman, let us know for future. I will try to claim if I can, but not that hopeful - also depends if delayed, which isn't necessarily same thing as a journey taking longer if the customer is asked to leave earlier. The only remotely comparable example I have - and in many ways it isn't that comparable - is when the Bexleyheath line was closed for a week due to emergency engineering works. South Eastern paid out Delay Repay on my original itinerary no quibbles, even though there was an emergency timetable for the week in place that I knew about after I booked my ticket and before the day of the journey. South Eastern ended up with a big bill that night from SWR apparently since SWR had to arrange an onward taxi for me when South Eastern's delay meant I could only reach Axminster not Cranbrook.
     
  29. Silverdale

    Silverdale Member

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    It would be ideal if a timetable could be published and never required amendment, but I don't think any railway professional would imagine that's achievable. Stuff happens, not just strikes. My feeling is that when stuff happens it's better to have an amended timetable that's reliable, so that even though passengers will be inconvenienced, they're given fair warning and the option to not travel and have a refund for any tickets they've already purchased.
     
  30. yorkie

    yorkie Administrator Staff Member Administrator

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    And receive delay compensation if they do travel and are delayed, as with any other delay.
     

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