Discussion About What Action Should be Taken Against Passengers With Expired Railcards

[Sun Chariot]

Can one of this thread's readers help me understand why several posts here state the TOC's  only lost revenue is the value of tlhe expired-but-still-used railcard?

Take this scenario:
Two people make the same journey 3 times each week with the same TOC and with the same ticket type.
Person A has no railcard and thus pays the full value for that ticket type: £45 per journey.
Person B has a railcard which expired 6 months ago but they continue to claim the railcard discount (1/3 off); so they pay only £30 per journey.
Over that 6 month period, the TOC earns a gross £3510 from Person A but only £2340 from Person B.
Person B pays £1170 less to the TOC than Person A.
Surely that £1170 is loss of gross revenue?

 

[yorksrob]

No? All they should have done to regularise their tickets - assuming they still qualify - was to pay £35.

If they don’t qualify it’s a different story entirely.

The railway already leaves wide open goals for a few forms of railcard abuse which are essentially undetectable. Not least the forgotten railcard policy, which is easy to abuse. And a couple of other methods I won’t divulge on a public forum.

The fanaticism about expired railcards is just opportunism.

Ultimately, if you don't have the railcard, you become ineligible for the discount.

I'm very uncomfortable with the idea of different consequences for those who might be entitled to a railcard and failed to purchase one, versus those not entitled to one. It sounds like a further layer of discrimination against those of us who are already expected to cough up full fare.

If people have an expired railcard then I think they should be able to pay up the difference in fare without legal implications, but why should they walk away with a discount they weren't entitled to at the time ?

Of course, the other aspect is that train companies should do their job and check some tickets so that people are less likely to run up months and months of arrears.

 

[pitdiver]

That depends on how you're caught. If caught by the computer system it's £80 in the post, reduced to £40 for prompt payment. On another DVLA system it's £30 plus 1.5 times the unpaid tax. By police, depends on your attitude. They can give a warning, issue FPN, report for prosecution. But if a DVLA clamper van catches you, then the release fee is £260.

All rather like the railway!

I'm pretty sure PRIV tickets have been available online for a while now.

== Doublepost prevention - post automatically merged: Sunday at 14:38 ==


Station-issued Railcards do not have barcodes, chips, etc., and not all phones have NFC capability.

Priv tickets are not available on line for ex LUL employees. We are still waiting for TfL to sort it out.

 

[Tetchytyke]

Over that 6 month period, the TOC earns a gross £3510 from Person A but only £2340 from Person B.
Person B pays £1170 less to the TOC than Person A.
Surely that £1170 is loss of gross revenue?

If person B had paid £35 they would have been entitled to that discount of £1170. So the actual revenue lost is £35. The £35 they should have paid but for whatever reason didn’t.

ETA: Just to expand on this, the comparator isn’t with the person who paid full fare. The comparator is with person C, who correctly purchased their railcard for £35 and received the completely legitimate discount of £1170. The difference between what person B paid and what person C paid is £35.

I'm very uncomfortable with the idea of different consequences for those who might be entitled to a railcard and failed to purchase one, versus those not entitled to one. It sounds like a further layer of discrimination against those of us who are already expected to cough up full fare.

There is a significant difference between people who simply needed to pay the £35 fee to get the discount, and people who wilfully claimed a discount that they could never be entitled to. There is, in my mind, a world of difference between a 23 year old forgetting or “forgetting” to renew their 16-25 railcard and a 33 year old claiming a discount that is expressly something they are not entitled to, a discount specifically for people aged between 16 and 25 (or people in full time education).

 

[island]

Priv tickets are not available on line for ex LUL employees. We are still waiting for TfL to sort it out.

Sure. The point I was making was that as at least some people can buy them online, checking the card becomes more important.

 

[pitdiver]

Sure. The point I was making was that as at least some people can buy them online, checking the card becomes more important.

Hope it's sorted soon. It's a PITA in theory having to go to either Mansfield or Worksop to buy perhaps a complicated ticket.

 

[yorksrob]

If person B had paid £35 they would have been entitled to that discount of £1170. So the actual revenue lost is £35. The £35 they should have paid but for whatever reason didn’t.

ETA: Just to expand on this, the comparator isn’t with the person who paid full fare. The comparator is with person C, who correctly purchased their railcard for £35 and received the completely legitimate discount of £1170. The difference between what person B paid and what person C paid is £35.


There is a significant difference between people who simply needed to pay the £35 fee to get the discount, and people who wilfully claimed a discount that they could never be entitled to. There is, in my mind, a world of difference between a 23 year old forgetting or “forgetting” to renew their 16-25 railcard and a 33 year old claiming a discount that is expressly something they are not entitled to, a discount specifically for people aged between 16 and 25 (or people in full time education).

I'm of the opinion that it is the owning of the railcard that makes you eligible for the discount - not the personal circumstance that makes you eligible for the railcard, that makes you eligible for the discount. If you don't own the railcard at a given time, then you are not entitled to the discount at that given time.

And whilst I agree that people can innocently forget to renew their railcard (hence why I prefer the pay-up and shut-up approach to such circumstances over legal action) we cannot assume that an individual would never deliberately choose not to renew in the hope of saving a bit of money.

In that circumstance, there is no moral difference whatsoever between someone who chooses not to renew a railcard they might be entitled to, and still claims the discount, and someone who falls between the eligibility gap and claims a discount.

In neither instance are they entitled to that discount.

 

[Sun Chariot]

If person B had paid £35 they would have been entitled to that discount of £1170. So the actual revenue lost is £35. The £35 they should have paid but for whatever reason didn’t.

ETA: Just to expand on this, the comparator isn’t with the person who paid full fare. The comparator is with person C, who correctly purchased their railcard for £35 and received the completely legitimate discount of £1170. The difference between what person B paid and what person C paid is £35.

"If person B had paid £35 they would have been entitled to that discount of £1170".
But Person B didn't renew their railcard and were not entitled to claim discounted travel.

Surely that is common practice in UK law, to any situation of a person not paying the required amount for goods/services: it is not what you would've paid - it is what you didn't pay and still took those goods or services.

 

[John R]

"If person B had paid £35 they would have been entitled to that discount of £1170".
But Person B didn't renew their railcard and were not entitled to claim discounted travel.

Surely that is common practice in UK law, to any situation of a person not paying the required amount for goods/services: it is not what you would've paid - it is what you didn't pay and still took those goods or services.

That would be my understanding as well. They claimed a discount that they were not entitled to, so that is the loss to the business. What they might hypothetically have done is irrelevant.

 

[35B]

If person B had paid £35 they would have been entitled to that discount of £1170. So the actual revenue lost is £35. The £35 they should have paid but for whatever reason didn’t.

ETA: Just to expand on this, the comparator isn’t with the person who paid full fare. The comparator is with person C, who correctly purchased their railcard for £35 and received the completely legitimate discount of £1170. The difference between what person B paid and what person C paid is £35.


There is a significant difference between people who simply needed to pay the £35 fee to get the discount, and people who wilfully claimed a discount that they could never be entitled to. There is, in my mind, a world of difference between a 23 year old forgetting or “forgetting” to renew their 16-25 railcard and a 33 year old claiming a discount that is expressly something they are not entitled to, a discount specifically for people aged between 16 and 25 (or people in full time education).

If I'd paid £250,000 I'd have been entitled to the Ferrari. I didn't, so I'm not. A railcard discount comes from possession of the railcard, and eligibility for the railcard is determined by the criteria for that railcard. That is subtly but importantly different from "my son is 20, therefore he's entitled to a 16-25 railcard, therefore he's entitled to the discount".

There are genuine questions about what the consequences should be if someone is eligible for the railcard but has not purchased (which may include renewing) one. Those questions are both moral and practical. But, in fairness, that analysis can't just ignore the point that it is the railcard that entitles the holder to the discount, not their eligibility for the railcard.

 

[Tetchytyke]

If you don't own the railcard at a given time, then you are not entitled to the discount at that given time.

I agree, but that isn't my point. My point is about what the actual revenue lost is.

it is not what you would've paid - it is what you didn't pay and still took those goods or services.

They claimed a discount that they were not entitled to

Person A buys the railcard for £35 and correctly benefits from discounts.

Person B doesn't buy the railcard for £35 and incorrectly benefits from discounts.

What is the difference between the two people?

As you yourself note, the only difference between the two individuals is the railcard. One purchased a railcard for £35, one did not.

Clearly the TOCs prefer to make some leaps which, in my opinion, are rather disingenuous. They decree that if you don't have a railcard then your entire ticket is invalid and you should be forced to pay the Anytime fare in compensation. It's fairly obvious why they would prefer that interpretation.

But strip all the noise out and it boils down to this- the service that the person actually didn't pay for is the railcard, and the cost of that railcard is (usually) £35.

If I'd paid £250,000 I'd have been entitled to the Ferrari. I didn't, so I'm not.

In that case you've taken a Ferrari.

If you'd paid £35 you'd have been entitled to the railcard, but you didn't so you're not. What have you taken?

 

[Tevion539]

That would be my understanding as well. They claimed a discount that they were not entitled to, so that is the loss to the business. What they might hypothetically have done is irrelevant.

"If person B had paid £35 they would have been entitled to that discount of £1170".
But Person B didn't renew their railcard and were not entitled to claim discounted travel.

Surely that is common practice in UK law, to any situation of a person not paying the required amount for goods/services: it is not what you would've paid - it is what you didn't pay and still took those goods or services.

This is entirely my understanding of it. Sure, there could be a middle ground, maybe more could be done in reminding people of railcards expiring and if you choose to ignore it/aren’t eligible at all, harsher penalties in place if caught. Not everyone is going to agree, regardless, but there has to be a reasonable solution.

I’d like to see someone stand up in court and say “I’m only going to pay £35, because that’s all they lost” and see how far they get. I don’t think it would go very far. As it stands, it’s written in law. Like the aforementioned road tax/insurance. If the only difference is that I’ve not paid what I should have, forget the fines etc, just let me pay what I should have then and nothing more. That’s zero accountability.

 

[Tetchytyke]

That is subtly but importantly different from "my son is 20, therefore he's entitled to a 16-25 railcard, therefore he's entitled to the discount".

A person who is 20 is eligible to buy a railcard for £35. They do not do so. They then claim a discount which is for railcard holders only.

The industry claim that they have 'stolen' the value of the discount. But I think that is disingenuous. What I think they have actually 'stolen' is the railcard.

 

[duffield]

I have a feeling this argument is going round in circles and getting nowhere...

 

[Tetchytyke]

As it stands, it’s written in law. Like the aforementioned road tax/insurance.

VED is different. There is a penalty for not paying on time, although it should be noted that the penalty differs depending on whether you are caught driving without paying the VED or not. But the penalty is separate to the VED due. The DVLA don't say that you owe them extra VED because you were late.

I have a feeling this argument is going round in circles and getting nowhere...

Very probably!

It comes down to whether you believe the service being 'stolen' is the discount or the railcard. For fairly obvious reasons the TOCs prefer to believe the former...

 

[typefish]

Before anyone discusses what to do with passengers with expired railcards that are entitled to purchase replacement railcards, perhaps what should be discussed first is how poor after-sales support is for current railcard holders.

When I held a railcard, there was a period of a few weeks (and lost journey opportunities for the rail industry) where my digital only railcard refused to be re-provisioned on my device due an "issue with the app".

I wasn't given the opportunity to have a new digital card issued, nor supplied with any form of alternative documentation, nor was given a partial refund or additional validity for the period that I was without railcard and was told to pay the full fare and to go away until the app was fixed, etc.

Essentially, if I exercised my rights to use a railcard, without it being physically present on my device, I would have exposed myself to potential prosecution - and the railcard issuer genuinely didn't care.

If that's how railcard issuers treat those with valid railcards who are having fundamental issues caused solely by the issuer itself or its agents/vendors, then I definitely wouldn't trust them to sensibly deal with relatively minor ticketing irregularities that are caused by customers/users of the rail network.

 

[35B]

A person who is 20 is eligible to buy a railcard for £35. They do not do so. They then claim a discount which is for railcard holders only.

The industry claim that they have 'stolen' the value of the discount. But I think that is disingenuous. What I think they have actually 'stolen' is the railcard.

They have "stolen" the discount, as they have not procured for themselves the eligibility for that discount. You can't ignore that question of entitlement when calculating loss

 

[Alex C.]

The railway has the upper hand in criminal prosecutions because they use the threat of criminal charges for a single offence to force payment for other suspected instances of railcard misuse.

However, when it comes to civil cases, I don't believe we've ever seen one progress to court. If someone engaged with that process, I'd be very surprised if they were ordered to pay the full anytime single fare for each journey. Whilst the ticket may not have been valid, it seems unfair for the railway to "double dip" on revenue. A court would likely look at the actual cost of each journey as it would have been (e.g., off-peak return if appropriate) rather than the heavy-handed anytime single approach.

The legal principle is clear: damages should reflect actual loss, not punitive amounts. Under English contract law, compensation is meant to put the injured party in the position they would have been in had the breach not occurred - not to impose penalties. The railway's actual loss is the difference between what they received and what they should have received, not some theoretical maximum fare.

Consider this analogy: if you have a fairly new car and someone crashes into you, the court examines the actual loss (diminution in value, repair costs, or market value) even if you still owe £10k on finance after settlement. The point is that courts look at actual circumstances and losses sustained as a direct result of the acts in question - not the punitive approach used in criminal strict liability prosecutions.

It would be interesting to see a case go this route, but I suspect the railways don't actually want to pursue civil litigation. It costs them significantly more money with a much less favourable environment for them as claimants. There's a reason they prefer the criminal route with its lower burden of proof and intimidation factor.

One final question for those who think charging thousands for "avoided" railcard fares is reasonable and proportionate: would you think it reasonable to do the same if someone had their physical senior railcard stolen and couldn't locate the original receipt? Should there be additional allowances for disabled railcard holders who forget to renew due to their disability?

 

[35B]

One final question for those who think charging thousands for "avoided" railcard fares is reasonable and proportionate: would you think it reasonable to do the same if someone had their physical senior railcard stolen and couldn't locate the original receipt? Should there be additional allowances for disabled railcard holders who forget to renew due to their disability?

I think that seeking restitution is entirely reasonable, and if someone has claimed thousands in discounts they're not entiitled to, that includes clawing those back. I don't think that extends to measuring loss against the maximum possible fare, and I also think special care is due where the individual is vulnerable.

 

[whirlybird]

16-17 savers require proof. But under 16s? I don’t think many under 16s can prove their age, unless they have a passport and carry it with them.

Apparently under 16s can get a "Child Rate Photocard" (https://www.nationalrail.co.uk/on-the-train/train-travel-with-children/)

 

[yorksrob]

The railway has the upper hand in criminal prosecutions because they use the threat of criminal charges for a single offence to force payment for other suspected instances of railcard misuse.

However, when it comes to civil cases, I don't believe we've ever seen one progress to court. If someone engaged with that process, I'd be very surprised if they were ordered to pay the full anytime single fare for each journey. Whilst the ticket may not have been valid, it seems unfair for the railway to "double dip" on revenue. A court would likely look at the actual cost of each journey as it would have been (e.g., off-peak return if appropriate) rather than the heavy-handed anytime single approach.

The legal principle is clear: damages should reflect actual loss, not punitive amounts. Under English contract law, compensation is meant to put the injured party in the position they would have been in had the breach not occurred - not to impose penalties. The railway's actual loss is the difference between what they received and what they should have received, not some theoretical maximum fare.

Consider this analogy: if you have a fairly new car and someone crashes into you, the court examines the actual loss (diminution in value, repair costs, or market value) even if you still owe £10k on finance after settlement. The point is that courts look at actual circumstances and losses sustained as a direct result of the acts in question - not the punitive approach used in criminal strict liability prosecutions.

It would be interesting to see a case go this route, but I suspect the railways don't actually want to pursue civil litigation. It costs them significantly more money with a much less favourable environment for them as claimants. There's a reason they prefer the criminal route with its lower burden of proof and intimidation factor.

One final question for those who think charging thousands for "avoided" railcard fares is reasonable and proportionate: would you think it reasonable to do the same if someone had their physical senior railcard stolen and couldn't locate the original receipt? Should there be additional allowances for disabled railcard holders who forget to renew due to their disability?

I think its reasonable for them to only be charged for the fare that they should have paid - i.e off-peak if they travelled at an off peak time.

 

[Tevion539]

I think its reasonable for them to only be charged for the fare that they should have paid - i.e off-peak if they travelled at an off peak time.

I think the difference in the fares is… fair. So if I’ve paid £6 for a £9 fare, the difference would be £3. Plus an admin fee depending on the investigation work needed. 150, which seems to be the norm, is excessive for one ticket, so something that actually reflects the work needed to investigate. Would anyone else agree?

 

[35B]

I think the difference in the fares is… fair. So if I’ve paid £6 for a £9 fare, the difference would be £3. Plus an admin fee depending on the investigation work needed. 150, which seems to be the norm, is excessive for one ticket, so something that actually reflects the work needed to investigate. Would anyone else agree?

Why is £150 excessive for one ticket? Many of the costs will be the same whether a case is for one ticket or more, and the infrastructure to support the work also incurs costs.

 

[Sun Chariot]

But strip all the noise out and it boils down to this- the service that the person actually didn't pay for is the railcard, and the cost of that railcard is (usually) £35.

UK law, the Fraud Act 2006: Fraud by False Representation
Definition: someone makes a knowingly false representation (verbally, in writing, or through conduct) and with the intent to make a gain, cause a loss, or expose someone to a risk of loss. Their intent to cause it holds sufficient case to prosecute under the Fraud Act 2006.

That's why I based my scenario on one that shows the intent. Their discount-claimed travel - al 6 months of it - falls within that definition. Notwithstanding that their discount-claimed tickets are invalid due to invalidity of their railcard.

Failing to spot and act upon the expiry date on a physical or virtual railcard is careless, if once and if 1-2 weeks following a railcard's expiry. Any more than that, is frankly inexcusable.

 

[Tevion539]

Apparently under 16s can get a "Child Rate Photocard" (https://www.nationalrail.co.uk/on-the-train/train-travel-with-children/)

Honestly didn’t know that, but again, I doubt many would carry it.

 

[Sun Chariot]

I'm of the opinion that it is the owning of the railcard that makes you eligible for the discount.

It is. Ownership of a valid railcard on the date(s) of travel.

 

[AlterEgo]

UK law, the Fraud Act 2006: Fraud by False Representation
Definition: someone makes a knowingly false representation (verbally, in writing, or through conduct) and with the intent to make a gain, cause a loss, or expose someone to a risk of loss. Their intent to cause it holds sufficient case to prosecute under the Fraud Act 2006.

That's why I based my scenario on one that shows the intent. Their discount-claimed travel - al 6 months of it - falls within that definition. Notwithstanding that their discount-claimed tickets are invalid due to invalidity of their railcard.

Failing to spot and act upon the expiry date on a physical or virtual railcard is careless, if once and if 1-2 weeks following a railcard expiry. Any more than that, is frankly inexcusable.

Is this actually the case in law (please give examples) or is it only your contention that forgetting to do something is fraud?

This is a completely unserious discussion if you really believe forgetting to renew a railcard is fraud. The cornerstone of the offence is intent, which has to be proven to the level that someone is “sure” that they had that intent - beyond reasonable doubt. Failing to renew a subscription is not it.

 

[Sun Chariot]

Is this actually the case in law (please give examples) or is it only your contention that forgetting to do something is fraud?

This is a completely unserious discussion if you really believe forgetting to renew a railcard is fraud. The cornerstone of the offence is intent, which has to be proven to the level that someone is “sure” that they had that intent - beyond reasonable doubt. Failing to renew a subscription is not it.

Reread my second and third paragraphs

 

[AlterEgo]

Reread my second and third paragraphs

What does the Fraud Act have to do with it?

We're talking about the amount the TOC can recover outside the court system, via civil means. There's no allegation anywhere of any fraud, or even any intent. The TOCs take an intent-blind approach to all of this.

 

[Sun Chariot]

We're talking about the amount the TOC can recover outside the court system, via civil means. There's no allegation anywhere of any fraud, or even any intent.

Exactly - hence what I asked this morning on post #122.
One thread respondant has unwaveringly stated that the only financial revenue loss to a TOC is that from the non-renewed railcard - and that the lost revenues due to travelling with the discount-claimed tickets - discount not entitled to - are not a "loss".
I disagree. I laid out why in the scenario I used in post #122.