Delay Repay on Non Strike Days

[Chrisgr31]

As we all know there were strikes on Tuesday, Thursday and Saturday last week with major disruption on the following day. The advice from many TOCs, including Southern, was to only travel if absolutely necessary.

I have an annual season ticket and for Tuesday and Thursday Southern have given the maximum delay repay. However for Wednesday and Friday when they operated a Sunday service they haven’t. On my line (Uckfield) the first London bound train left at 9.33 and didnt get to Victoria until 11.09. I would usually catch the 6.33 which gets to London Bridge at 7.53. The Sunday service arrives later as it necessitates a change at Oxted.

Southern are dealing Delay Repay on the basis that the commuting trains were not timetabled and therefore there were no delays.

Needless to say this isn’t a particularly popular response and is even worse for those that had to go in early so had to buy a ticket from Tunbridge Wells.

Amy thoughts on options?

 

[DavyCrocket]

I’ve put in delay repay for each day that there were no trains when required at normal times. Will see how I get on.

 

[Watershed]

As we all know there were strikes on Tuesday, Thursday and Saturday last week with major disruption on the following day. The advice from many TOCs, including Southern, was to only travel if absolutely necessary.

I have an annual season ticket and for Tuesday and Thursday Southern have given the maximum delay repay. However for Wednesday and Friday when they operated a Sunday service they haven’t. On my line (Uckfield) the first London bound train left at 9.33 and didnt get to Victoria until 11.09. I would usually catch the 6.33 which gets to London Bridge at 7.53. The Sunday service arrives later as it necessitates a change at Oxted.

Southern are dealing Delay Repay on the basis that the commuting trains were not timetabled and therefore there were no delays.

Needless to say this isn’t a particularly popular response and is even worse for those that had to go in early so had to buy a ticket from Tunbridge Wells.

Amy thoughts on options?

It's an issue where there isn't a determinitive or clear-cut answer, I'm afraid.

The NRCoT and most TOCs' Passenger's Charters set out the TOCs' position that Delay Repay is paid against the timetable "published" (though not in any meaningful sense) at 10pm the night before.

I have severe doubts about the enforceability of that exclusion, given that 10pm the night before is so near to the date of travel that it effectively gives no notice whatsoever, as well as the fact that there is no requirement to notify passengers of any changes, and that it gives TOCs complete latitude over the timetable - ostensibly even if they reduce it to one that is essentially useless for commuters, as in your example.

You also have rights under the Passenger Rights and Obligations (PRO) Regulation, which sets out in Article 17 the right to a minimum level of compensation (25% of the relevant portion of the ticket for a 60-119 min delay, 50% for 120+ mins) in the event of delays. The issue is that the stated provisions only apply to single/return tickets, and for season ticket holders the legislation essentially 'hands the baton back' to the compensation arrangements decided by the TOC:

Passengers who hold a travel pass or season ticket and who encounter recurrent delays or cancellations during its period of validity may request adequate compensation in accordance with the railway undertaking’s compensation arrangements. These arrangements shall state the criteria for determining delay and for the calculation of the compensation.

I don't think that a Delay Repay scheme tilted so heavily in favour of the TOCs (in terms of the ability to unilaterally vary, with effectively no notice, the timetable used as the reference point) can possibly constitute "adequate compensation". Clearly the legislation wouldn't allow a policy of "season tickets are discounted, so you cannot ever get compensation". But the precise latitude afforded to TOCs is something which is legally undecided.

What is more clear-cut legally is the right to re-routeing under Article 16, which entitles you to re-routeing at the earliest opportunity when a delay of 61+ minutes is anticipated. "Delay" is defined in Article 3 as meaning:

the time difference between the time the passenger was scheduled to arrive in accordance with the published timetable and the time of his or her actual or expected arrival

The TOCs can't insert their own definition of "published" into the legislation (certainly not in a manner that is unfavourable to passengers - see Article 6). Any by any sensible definition, the "published timetable" is something that is published several weeks or months in advance, not a few days, let alone 10pm the night before.

So as Southern have, presumably, refused to arrange any ticket acceptance to enable you to get to London on alternative routes, they are at least liable to pay for your costs of arranging the re-routeing yourself.

I'm sure you will face some push-back on this. But for Southern to suggest that it's OK to arbitrarily change the timetable in a manner that renders the season ticket completely unusable for its intended purpose, yet for you not to be eligible for any recourse, is clearly insupportable.

 

[Jamiescott1]

I usually get the 6.06 from marlow arriving in Paddington at 0652. However on strike and non strike days the first train from marlow wasn't until about 8am. I therefore cycled to maidenhead to get the first train, arriving at 0825 on strike days and 0750 on non strike days
I have a season ticket. Can I put in for delay repay?

 

[Chrisgr31]

Thanks Watershed, I will ponder what to do when they move my claim from referred to declined, however will be taking it further. It’s not as if Delay Repay really reflects the travel cost. The number of passengers who actually travel the number of days the calculation is based on must be limited especially outside the London travelcard zone.

Jamie the GWR page doesn’t say what they will pay for but I would claim

I have asked Transport Focus for their opinion on Southerns approach

 

[SCDR_WMR]

I thought TOCs were currently 'arranging' refunds on season tickets for the days of the strikes given they were unable to provide any near a reasonable service level.

I'm sure that's what our internal memos have stated anyway. Certainly the better option than using DR given no delay occurred in reality. Sets a precedent for later Industrial Action too.

 

[Jamiescott1]

I thought TOCs were currently 'arranging' refunds on season tickets for the days of the strikes given they were unable to provide any near a reasonable service level.

I'm sure that's what our internal memos have stated anyway. Certainly the better option than using DR given no delay occurred in reality. Sets a precedent for later Industrial Action too.

Gwr advise to use delay repay and claim 120 minute delay

 

[DavyCrocket]

Had this as an email. Refusing to pay out.

To identify if you are eligible for Delay Repay compensation, we verify your claim using industry systems which hold historic train running information.

Decision: Declined
Having checked our records for the details of the delay you provided to us, our system cannot find the journey that you intended to make so we are unable to proceed with your claim at this time.

 

[Watershed]

Had this as an email. Refusing to pay out.

To identify if you are eligible for Delay Repay compensation, we verify your claim using industry systems which hold historic train running information.

Decision: Declined
Having checked our records for the details of the delay you provided to us, our system cannot find the journey that you intended to make so we are unable to proceed with your claim at this time.

What are your particular circumstances? If sufficiently different from the OP's it may warrant a new thread.

 

[DavyCrocket]

It’s the same as the OP the non strike days were a change to the timetable and are not eligible for compensation as it was advised by 2200 the day before (so with the minimum of seven hours notice)

 

[Watershed]

It’s the same as the OP the non strike days were a change to the timetable and are not eligible for compensation as it was advised by 2200 the day before (so with the minimum of seven hours notice)

Did you travel at all that day?

 

[Chrisgr31]

It appears that SWR will not be paying out for non strike days either https://www.southwesternrailway.com/contact-and-help/train-ticket-refunds/strike-refunds
"Intermediate days between strikes (22 and 24 June)
Normal Delay Repay policy applies and compensation will be in line with the revised timetable."

South Eastern are silent on the non-strike days https://www.southeasternrailway.co.uk/help-and-contact/get-in-touch/industrial-action-refunds

And this article in The Metro https://metro.co.uk/2022/06/18/how-to-claim-refunds-during-next-weeks-rail-strike-16850462/ suggests it is a nationwaide policy.

Presumably this means that in future when rail operators advise passengers not to travel we should ignore their advice.

My claim for non strike days has been refused. So I have submitted a formal complaint to Southern so that I can go down the Ombudsman route.

Did you travel at all that day?

I believe the advice from all rail operators was not to travel on the intervening days. It certainly was from Southern.

 

[Watershed]

It appears that SWR will not be paying out for non strike days either https://www.southwesternrailway.com/contact-and-help/train-ticket-refunds/strike-refunds
"Intermediate days between strikes (22 and 24 June)
Normal Delay Repay policy applies and compensation will be in line with the revised timetable."

South Eastern are silent on the non-strike days https://www.southeasternrailway.co.uk/help-and-contact/get-in-touch/industrial-action-refunds

And this article in The Metro https://metro.co.uk/2022/06/18/how-to-claim-refunds-during-next-weeks-rail-strike-16850462/ suggests it is a nationwaide policy.

Presumably this means that in future when rail operators advise passengers not to travel we should ignore their advice.

My claim for non strike days has been refused. So I have submitted a formal complaint to Southern so that I can go down the Ombudsman route.


I believe the advice from all rail operators was not to travel on the intervening days. It certainly was from Southern.

Clearly a quite unsustainable position - "yes, we didn't provide any usable service but you're not entitled to anything". Though sadly that doesn't stop them from trying it on!

 

[Chrisgr31]

Clearly a quite unsustainable position - "yes, we didn't provide any usable service but you're not entitled to anything". Though sadly that doesn't stop them from trying it on!

I am assuming it’s instructions from DfT. You know those people that are complaining no one is travelling regularly. There therefore decide to annoy those who are actually travelling!

Southern have now responded to my complaint and advised they can’t give compensation for non strike days as they are following DfT/RDG guidance:-

“In relations to your comments regarding what compensation we were able and unable to offer for the non-strike days, I would like to explain that we follow the guidance that was provided to us by the department for transport and the Rail delivery group who oversee all Rail operations.

We can only compensate for the strike days, the other days even though the services were highly disrupted due to the knock-on effect of the strike days meaning it was impossible to run a normal service. This is why the decision to implement a temporary timetable for the whole week was made. Unfortunately, we could not run a full service and this meant parts of our network had no service at all.

In regards to our policy these are discussed and approved at the highest level, however, I am sorry if you are unhappy with the policy’s in place.”

So Rail Ombudsman here I come

 

[Watershed]

I am assuming it’s instructions from DfT. You know those people that are complaining no one is travelling regularly. There therefore decide to annoy those who are actually travelling!

Southern have now responded to my complaint and advised they can’t give compensation for non strike days as they are following DfT/RDG guidance:-

“In relations to your comments regarding what compensation we were able and unable to offer for the non-strike days, I would like to explain that we follow the guidance that was provided to us by the department for transport and the Rail delivery group who oversee all Rail operations.

We can only compensate for the strike days, the other days even though the services were highly disrupted due to the knock-on effect of the strike days meaning it was impossible to run a normal service. This is why the decision to implement a temporary timetable for the whole week was made. Unfortunately, we could not run a full service and this meant parts of our network had no service at all.

In regards to our policy these are discussed and approved at the highest level, however, I am sorry if you are unhappy with the policy’s in place.”

So Rail Ombudsman here I come

So they admit there was severe disruption but still claim they "cannot" compensate.

I don't doubt that the two-faced DfT may have given the TOCs instructions to act in breach of passengers' contracts (despite Schnapps saying everyone would be compensated) but that doesn't absolve GTR of their liability to you.

Going to the Rail Ombudsman is probably a complete waste of time but if you're not in a hurry, I suppose there's no harm in rolling the dice and hoping you get a complaints handler who even vaguely knows what they're doing.

Personally speaking I'd be writing a Letter Before Action at this point, or filing a section 75 claim if possible.

 

[WesternLancer]

If the hand of DfT is involved (and if the Minister is on record as saying people will be compensated) then an avenue is your MP - the MP should write to the minister and say 'you/ the then minister (did he resign? hard to keep track...) said people would be compensated - my constituent has not been compensated - why is that considered acceptable by the train operator since it is not what the Minister promised?'

You might wish to wait for the Ombudsman to conclude before putting this to your MP or not.

 

[Fiyero]

SWR advice for strike days was to put in a 120 minute claim for each strike day to get a refund for the day. i did and got a refund for half each day! still waiting to hear if I should put in PM claims to or appeal these ones. I only use the trains on Tuesday, Thursday and Saturday (but have a season ticket for convenience and the gold card!) so it was really annoying those were the strike days!

 

[ThameslinkUser]

GTR are now pushing the following. Doesn't seem very teneable to suggest that you cannot claim delay repay if you're delayed by hours due to what they call a late start.

There’s no compensation for Season Ticket holders who:

• Decide not to travel on the 28 July

Or

• Are affected by the later start to train services that morning and the Sunday service that will be in operation throughout the day

Compensation will only be payable against the timetable that’s operating that day. Usual Delay Repay rules apply and you can claim compensation for any delay of 15 minutes or more against the advertised timetable.

In addition to the almost-certain conflict with the PRO Regulations, does anyone know if such a position would also be in breach of the Consumer Rights Act?

Seems a rather outlandish concept that the train I commute on, the 0412 BTN - LBG, can be cancelled, with no trains until post-0730, yet no compensation is due. I'm also curious as to other people's opinions on TOCs seemingly being able to choose specific dates on which they can provide compensation despite no difference in passengers' ability to travel/ change in messaging?

 

[Chrisgr31]

I am still in an email exchange with GTR, as you can’t go to the Rail Ombudsman until you get a deadlock email from them. In their latest email to me they said they said:

”We appreciate that when it comes to annual season ticket holders, any notice of amended timetables is unlikely to be issued before the ticket is purchased. However it is unfortunately expected that during the course of the year, there will be times when an amended timetable is put into place, such as during engineering work or industrial action. When an amended timetable is introduced, we will be unable to offer compensation unless we issue a warning to passengers to avoid travel.”

I have gone back to them to point out their advice was “to only travel by rail if necessary“ which to ll intent and purposes is do not travel. I am waiting for a response. I will be submitting another Delay Repay application in for Thursday.

In my experience when there is engineering works etc they offer alternative means of transport. They aren’t doing that therefore they should compensate

 

[Magdalen Road]

GTR are now pushing the following. Doesn't seem very teneable to suggest that you cannot claim delay repay if you're delayed by hours due to what they call a late start.




In addition to the almost-certain conflict with the PRO Regulations, does anyone know if such a position would also be in breach of the Consumer Rights Act?

Seems a rather outlandish concept that the train I commute on, the 0412 BTN - LBG, can be cancelled, with no trains until post-0730, yet no compensation is due. I'm also curious as to other people's opinions on TOCs seemingly being able to choose specific dates on which they can provide compensation despite no difference in passengers' ability to travel/ change in messaging?

I'd noticed that too and wondered how they can get away with?

I've had to take annual leave for Thursday as the first train (if it runs) is three hours later than usual, which doesn't work with commuting for my job.
Where do I stand on delay repay - from my perspective, it's an abandoned journey.

 

[Watershed]

GTR are now pushing the following. Doesn't seem very teneable to suggest that you cannot claim delay repay if you're delayed by hours due to what they call a late start.

It's sadly unsurprisingly that they are setting out their position in a manner designed to make people think "those must be the rules".

In addition to the almost-certain conflict with the PRO Regulations, does anyone know if such a position would also be in breach of the Consumer Rights Act?

I think there is a good chance that it could be. This attempted use of the "Timetable of the Day" clause seems to me to be an example of a condition that would fall within paragraphs 2, 3, 10, 11, 12, 13, 16 and 18 of Schedule 2 of the Consumer Rights Act (terms which may be regarded as unfair - emphasis mine):

2 A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations, including the option of offsetting a debt owed to the trader against any claim which the consumer may have against the trader.

3 A term which has the object or effect of making an agreement binding on the consumer in a case where the provision of services by the trader is subject to a condition whose realisation depends on the trader's will alone.

10 A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

11 A term which has the object or effect of enabling the trader to alter the terms of the contract unilaterally without a valid reason which is specified in the contract.

12 A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

13 A term which has the object or effect of enabling the trader to alter unilaterally without a valid reason any characteristics of the goods, digital content or services to be provided.

16 A term which has the object or effect of giving the trader the right to determine whether the goods, digital content or services supplied are in conformity with the contract, or giving the trader the exclusive right to interpret any term of the contract.

18 A term which has the object or effect of obliging the consumer to fulfil all of the consumer's obligations where the trader does not perform the trader's obligations.

Seems a rather outlandish concept that the train I commute on, the 0412 BTN - LBG, can be cancelled, with no trains until post-0730, yet no compensation is due. I'm also curious as to other people's opinions on TOCs seemingly being able to choose specific dates on which they can provide compensation despite no difference in passengers' ability to travel/ change in messaging?

Indeed. For some lines it is even worse than that. Their position seems to be that they have sole discretion over whether they run any trains at all, and if not, whether that constitutes a breach of contract. It's a risible and quite unsupportable suggestion.

I am still in an email exchange with GTR, as you can’t go to the Rail Ombudsman until you get a deadlock email from them. In their latest email to me they said they said:

”We appreciate that when it comes to annual season ticket holders, any notice of amended timetables is unlikely to be issued before the ticket is purchased. However it is unfortunately expected that during the course of the year, there will be times when an amended timetable is put into place, such as during engineering work or industrial action. When an amended timetable is introduced, we will be unable to offer compensation unless we issue a warning to passengers to avoid travel.”

I have gone back to them to point out their advice was “to only travel by rail if necessary“ which to ll intent and purposes is do not travel. I am waiting for a response. I will be submitting another Delay Repay application in for Thursday.

In my experience when there is engineering works etc they offer alternative means of transport. They aren’t doing that therefore they should compensate

Whilst it is true that you cannot expect a completely unchanged timetable for the duration of the ticket, the custom and practice has for many decades been that engineering works would only take place at weekends, or times when fewer people travel, such as late nights or school holidays. And there is almost always a suitable form of alternative transport.

If you take their position to its extreme, they are effectively saying that they could reduce the service to 1 train per day and they would still not be in breach of contract. How can that possibly be the case?

Unfortunately we are into the messy and uncertain realm of implied terms here, but I would have said that there is an implied duty to provide reasonable notice of timetable changes, and, on any working day, provide services (by replacement transport if necessary) such that a normal 9-5 commute can be undertaken.

 

[Chrisgr31]

You will have to claim and then complain. I am currentry going through the complaint’s process. Waiting for GTRs response to my 3rd email on the subject. Once the process is completed it’s time to waste time with the Rail Ombudsman then small claims court

Watershed I might be making more reference to your post in due course. I have heard of a month of Sundays before but never thought they existed. However the TOCs seem to think 55, and counting, Sundays in a year is acceptable. Not sure my employer would agree.

 

[ThameslinkUser]

I have gone back to them to point out their advice was “to only travel by rail if necessary“ which to ll intent and purposes is do not travel. I am waiting for a response. I will be submitting another Delay Repay application in for Thursday.

They sent me a deadlock last night, and their position on the difference between 'our advice is to not travel unless absolutely necessary' and a 'do not travel' warning is just that. A difference in words, but it's a difference that they feel means no compensation is due:

Thank you for your email and sorry for the delay in getting back to you. In relation to the information given on social media, we have been providing the same message we provided throughout. I am sorry that you feel the wording is similar to the ‘Do Not Travel’ warnings detailed in our Passenger’s Charter, however, we did not issue this warning for any of the strike dates in June or the upcoming strike dates.

 

[Chrisgr31]

I have realised that on my route as a season ticket holder I am paying more to be unable to get to work today than someone who decides to go on a day trip.

First train today gets to London at 11.09 off peak return fare is £13.50. According to the delay repay calculations I am paying £14.10 if I wanted to go in.

 

[DavyCrocket]

Slightly off track but I’ve noticed that now as the GTR brand southern don’t run to Brighton from London now, a pop up window says must have a ticket that is routed via Hove or Lewes. Another con trick from them

 

[ThameslinkUser]

Slightly off track but I’ve noticed that now as the GTR brand southern don’t run to Brighton from London now, a pop up window says must have a ticket that is routed via Hove or Lewes. Another con trick from them

Excluding Sundays, that has been a long term plan in line with the Gatwick rebuild. The 1Axx (Brighton SN) paths are now occupied by 1Fxx (Eastbourne) and 1Hxx (Littlehampton) in afternoon peak trains meaning no attaching and splitting at HHE to maximise coastal capacity. As such, the Any Permitted Brighton fares were reduced to be in line with the old 'Not Valid on Gatwick Express' con tickets as only the Thameslink and 1W/1Mxx (Brighton GX) paths are running.

 

[_toommm_]

Excluding Sundays, that has been a long term plan in line with the Gatwick rebuild. The 1Axx (Brighton SN) paths are now occupied by 1Fxx (Eastbourne) and 1Hxx (Littlehampton) in afternoon peak trains meaning no attaching and splitting at HHE to maximise coastal capacity. As such, the Any Permitted Brighton fares were reduced to be in line with the old 'Not Valid on Gatwick Express' con tickets as only the Thameslink and 1W/1Mxx (Brighton GX) paths are running.

I did wonder why on Tuesday I saw the Super Off Peak 'Any Permitted' is the same price as the Super Off Peak 'Not via Gatwick Express'. It would make sense to suppress the 'Not via Gatwick Express' services, as they can be easily bought from TVMs if people aren't looking properly. You'd hope sensibility would prevail as they're the same price for now, but....

 

[Starmill]

Unfortunately it would seem that the only realistic ways to get your money back on season tickets are:

- Apply for a chargeback with your card issuer. If you're eligible for Consumer Credit Act protection you could try making a claim under this against your credit card provider that your contract has been breached by the TOC
- Make a claim against the operator in the County Court. This can generally be done using the Money Claim Online service

Both will need you to prepare some evidence of what you expected to receive at the time when you paid for the ticket, what you actually received on the day, and that you've already attempted several times to get the TOC to pay you damages or a refund for not upholding their end of the contract. There is no guarantee of a successful claim.

There's no fee for the chargeback option but there's also little route to appeal if you believe that your card issuer makes a mistake in deciding the chargeback. There is a small fee to make a claim in the Court Court. This is added to your damages if you win.

 

[Watershed]

- Apply for a chargeback with your card issuer. If you're eligible for Consumer Credit Act protection you could try making a claim under this against your credit card provider that your contract has been breached by the TOC

It's worth pointing out that the section 75 rights you refer to are different to the chargeback etc. schemes operated by Visa/Mastercard/Amex. The latter are much more at the card issuer's discretion.

 

[Starmill]

It's worth pointing out that the section 75 rights you refer to are different to the chargeback etc. schemes operated by Visa/Mastercard/Amex. The latter are much more at the card issuer's discretion.

Indeed. If you're eligible for s75 then I would certainly try that first before making a court claim. If you're eligible for a chargeback but not s75 then it's more finely balanced as to whether it is worth it. Obviously a small number of people who didn't pay by card at all might not be eligible for either, and if so they have only the latter option.