Penalty fare Appeal and conditions of carriage question

Discussion in 'Disputes & Prosecutions' started by ten7, 21 Apr 2019.

  1. ten7

    ten7 Member

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    If travelling from Kings Cross to Cambridge, you hold a zones 1-4 annual travel card and you approach a guard to ask to buy an extension return ticket covering Boundary zone 4 to Cambridge before reaching a zone 4 station, are you liable to a penalty fare at that point under the conditions of carriage? The penalty gate was for travelling without a valid ticket from Kings Cross to Stevenage. Calling points between the 2 stops were Kings Cross, Finsbury Park, Stevenage. If you are given one, is there grounds for an appeal?
     
    Last edited: 21 Apr 2019
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  3. sheff1

    sheff1 Established Member

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    deleted... covered in more detail in post #3
     
    Last edited: 21 Apr 2019
  4. ForTheLoveOf

    ForTheLoveOf Established Member

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    I'm guessing this isn't a hypothetical situation, so it'd be useful if you could clarify exactly what has and hasn't happened.

    But to answer your question. If there is a stop within the Zones that is within the coverage of your Travelcard, which you have not yet called at before you attempt to buy your additional ticket, then all is well. After all, if you are refused the additional ticket then you can simply get off without being ticketless at any point. If, however, this is not the case, for example you get on the train and it's the Cambridge Cruiser that runs non-stop, then you may indeed be liable to pay a Penalty Fare depending on the circumstances.

    Of course, the other issue is that, as far as I'm aware, the only time you'd be on a train which has a guard between King's Cross and Cambridge would be if you took an LNER or Hull Trains service that stops at Stevenage and changed there. All other services are Driver Only Operated so the only time they would usually have any other members of staff on duty would be if they were Revenue Protection Inspectors or the like :|:s so not sure which guard you'd be planning to buy your extension ticket off!
     
  5. ten7

    ten7 Member

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    The service called at Finsbury Park and Stevenage. I’m assuming he was a guard. But he could have been a ticket inspector, I don’t know. He was in uniform and carried a ticket machine.
     
  6. bb21

    bb21 Moderator Staff Member Moderator

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    Then that would have been a Thameslink or Great Northern service. There is unfortunately no guard on those trains. You should have bought your extension ticket before boarding or before the validity on your ticket ran out en route.

    Not doing so renders you liable for a Penalty Fare or prosecution.
     
  7. ForTheLoveOf

    ForTheLoveOf Established Member

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    Well, given that neither LNER nor Hull Trains services call at Finsbury Park (during normal operations!) we can be quite sure that it wasn't a guard, and that it was instead an RPI or similar.

    They are not usually permitted to sell tickets onboard, but in the circumstances, you could have asked to buy a ticket at any point before the doors closed at Finsbury Park without being in any trouble.

    It would be useful if you would let us know whether you have actually been issued with a Penalty Fare though, and if so what the circumstances were, since the enforceability and/or appealability of such a Fare will depend greatly on the circumstances.
     
  8. ten7

    ten7 Member

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    Yes, I was issued with a penalty fare. I hold a zone 1-4 annual travelcard and so boarded with the intent of purchasing the extension on the train as I have done this before from the guard with no problems on other lines. But when I approached and asked him for an extension return to Cambridge, he said it would be a penalty fare from Kings Cross to Stevenage and a return from there.
     
  9. MikeWh

    MikeWh Established Member Senior Fares Advisor

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    Had the train already left Finsbury Park before this exchange took place?
     
  10. ten7

    ten7 Member

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    Yes it just left Finsbury Park.
     
  11. ForTheLoveOf

    ForTheLoveOf Established Member

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    And you boarded it at King's Cross? Which platform at King's Cross did it leave from? I ask because the Penalty Fare signage varies between the different King's Cross platforms.

    On the face of it, you were correct to have been issued with a Penalty Fare. But it may nevertheless be the case that it is possible to appeal it successfully, on various different bases.

    How much has the Penalty Fare been issued for?
     
  12. ten7

    ten7 Member

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    Yes it was platform 9 I think. One of the platforms to the left of the Harry Potter shop.
     
  13. ForTheLoveOf

    ForTheLoveOf Established Member

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    Ok, and what was the amount of the Penalty Fare and the day you travelled?
     
  14. ten7

    ten7 Member

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    Day I travelled was a Sunday. The amount of the penalty fare was )30.20 which I was told was twice the full single fare from Kings Cross to stevenage.
     
  15. ForTheLoveOf

    ForTheLoveOf Established Member

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    Penalty Fares used to be issued for £20 or twice the undiscounted Anytime (Day) Single regardless of the time or date of travel - whichever was the higher. On the 6th of April 2018, however, the new Railways (Penalty Fares) Regulations 2018 came into force. Regulation 9(6) thereof changed the previous regime to it being £20 or twice the "full single fare applicable" (whichever is the higher), with the latter explicitly taking into account "the day and time of the journey that person is making" (Regulation 9(6)(b)).

    It was therefore incorrect for you to have been issued for a Penalty Fare for the amount of £30.20 on a Sunday (which would have been the correct amount for a non-bank holiday weekday, at twice the £15.10 Anytime Day Single). This is because there are Super Off-Peak Single fares which are valid on weekends and bank holidays, costing just £11.90. The correct amount of the Penalty Fare would therefore have been £23.80.

    Regulation 16 sets out how Penalty Fare appeals are handled at the first instance. Regulation 16(3)(a) sets out that one of the valid grounds for an appeal is "the penalty fare was not charged in accordance with the requirements of these Regulations", which is clearly the case where a Penalty Fare has been issued for the incorrect amount. Therefore any appeal you make should be allowed, and in fairness to the appeals body, we have heard of a number of similar cases since the new Regulations came in, where people were issued with a Penalty Fare based on the Anytime fare instead of a cheaper, valid (Super) Off-Peak fare - in each of those cases as far as I'm aware the appeal was allowed.

    I would therefore appeal the Penalty Fare using the details provided on the notice, outlining the above as your reason for appeal. You may wish to draft an appeal and then post it here for people to read it through and check that it looks OK. However, since you boarded at a station which undoubtedly had available ticketing facilities (King's Cross), you should be aware that the usual alternative to this matter being resolved by means of a Penalty Fare is for the train company to prosecute an offence committed under Byelaw 18 of the Railway Byelaws. In the particular circumstances of your case, since you boarded with a valid ticket and presumably handed this over for inspection when asked, as far as I can tell, you couldn't be prosecuted under that. You might, however, still be liable for prosecution under another law.

    But all of this is to say that, because of the potentially more serious alternatives to having the matter disposed of by way of a Penalty Fare, you should make sure that, in the unlikely event of you submitting an appeal against the Penalty Fare but this not being responded to by the end of the period where the Penalty Fare is due for payment, you should ensure that you do pay it, to prevent it from being cancelled. Unlike certain other kinds of penalty notices in life (parking charges etc.), payment of a Penalty Fare does not imply acceptance of guilt, and does not prevent a successful appeal. A paid-up Penalty Fare will be refunded in full if the appeal is successful.

    Once 21 days pass from when you submit your appeal, or the appeals body responds to your appeal, the train company can no longer prosecute an incident for which they issued a Penalty Fare. They, equally, cannot pursue an incident in relation to which a Penalty Fare has successfully been appealed. So it is in this window of potentially up to 21 days that a risk exists - if, for example, they cancelled the Penalty Fare for non-payment and initiated a prosecution.
     
    Last edited by a moderator: 23 Apr 2019
  16. ten7

    ten7 Member

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    I paid the penalty fare on the train and also intended to buy a ticket as I asked the inspector for an extension before he came to me. I thought prosecution was only if you intended to evade a fare?
     
    Last edited by a moderator: 23 Apr 2019
  17. ForTheLoveOf

    ForTheLoveOf Established Member

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    The Penalty Fare is a ticket in and of itself - just one that costs quite a lot more than normal! Paying it initially by no means rules out an appeal and I would certainly go for it if I were you.

    Prosecution is possible both if you intended to evade the fare and in a number of circumstances where you have merely made an innocent mistake by means of the Railway Byelaws - though in your particular case, neither of the two relevant offences that the Byelaws capture (boarding without a valid ticket, and failing to hand over your ticket for inspection and verification of validity) apply, and thus you couldn't be convicted under the Byelaws.
     
  18. ten7

    ten7 Member

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    Also if the appeal is successful, would they just charge me the correct £23.80 or would I be able to just pay the normal discounted single fare from kings cross to Stevenage.

    Would what you’re saying basically be appealing the case on a technicality? The problem with arguing cases on technicalities is that they can play the same game and I’m guessing a train company probably has people who knows these byelaws inside out.
     
    Last edited: 22 Apr 2019
  19. ForTheLoveOf

    ForTheLoveOf Established Member

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    If the appeal is successful you have no further liability for any fare.

    Appealing a Penalty Fare because it has been issued for an incorrect amount (and we aren't talking a difference of 10p here, you've been 'overcharged' by 27%!) isn't a technicality at all. It's a fundamental mistake which they made because they didn't train their staff to be sufficiently competent and knowledgeable of the very rules that define their job. The TOC's penalty for attempting to penalise you incorrectly is, accordingly, that they have to let the entire incident go.

    There are certainly other grounds of appeals that could justifiably be called "technicalities", such as minor variances in the wording of signage from the prescribed wording, but appealing a Penalty Fare on the basis of an incorrect amount is certainly not something they can do much about. The TOC will no doubt have an experienced back-office revenue protection and prosecutions team, but even an experienced team cannot change the law, and the law pretty much precludes anything from happening to you in these circumstances.

    Having paid the Penalty Fare, I'd have said there is little to no risk if you appeal it.
     
  20. ten7

    ten7 Member

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    True. But they could argue that I boarded without a valid ticket as I intended to travel to Cambridge and buy an extension on board. Equally they could argue that I failed to hand over a ticket for inspection since the penalty fare receipt says that I had no ticket. This would be them arguing their case on technicalities I think.
     
  21. ForTheLoveOf

    ForTheLoveOf Established Member

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    No, you boarded the train with a valid ticket since you could perfectly well have gotten off at Finsbury Park whilst staying within the validity of your ticket. If you had boarded at Finsbury Park then it would have been a different situation. And just because the Penalty Fare notice claims that you had "no ticket", perhaps what they meant is that you overtravelled the validity of your ticket - the notice doesn't contain enough categories to be undeniable evidence of failing to hand over a ticket.

    It's up to you of course, but the TOCs generally don't try and argue nonsense like this. What they do like to do is to play hardball when people are in the wrong. You were arguably liable for the undiscounted Anytime Day Single as per the National Rail Conditions of Travel (i.e. the contract), but since they decided instead to settle the matter by means of a Penalty Fare, they have forgone the right to recover the Anytime fare.

    They issued the Penalty Fare incorrectly, and provided they don't cancel it (which is exceptionally rare other than in cases of non-payment, I should add) before the appeals body makes a decision or 21 days from your appeal elapse, then they can prosecute nothing over the matter as they are statute barred from doing so, as per Regulation 11(3).

    They have shot themselves in the foot but I can hardly say I have any sympathy with them. There are situations where appealing is risky. Your situation is not one of those in my view.
     
  22. ten7

    ten7 Member

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    To be honest, I don’t have much sympathy for train companies at all especially Southern/Great Northern. They seem to spend more time and money on fining passengers who didn’t try to deliberately fare dodge than on improving the train service. By all means I think actual fare dodgers should be fined or prosecuted but I find it hard to believe that all the people I’ve ever seen being fined deliberately tried to fare dodge.
     
  23. ten7

    ten7 Member

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    I haven’t had a response yet but I’m just thinking - could they argue against this? I.e. Are there any circumstances or routes in which the time and day affects the full anytime fare? Or is the only way time and day could influence a fare with off peak tickets etc? For example, could it be argued that at a particular time and day, you have to go via a specific route and hence full single fare applicable always means the anytime fare?
     
  24. ForTheLoveOf

    ForTheLoveOf Established Member

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    The amount of the 'full single fare applicable' is, as the Regulations say, determined by reference to factors including the date and time of travel. On a Sunday, as in your case, a Super Off-Peak Day Single is valid so there are no grounds for the amount of the Anytime Day Single to be used. It was a careless mistake by the RPI and there is nothing they can do about it any more.
     
  25. ten7

    ten7 Member

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    The same RPI made a further mistake by selling me a return from Stevenage to Ely only which meant I had to buy another single from Stevenage to Zone 4 on the way back.
     
  26. ForTheLoveOf

    ForTheLoveOf Established Member

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    They were under no obligation to sell you a ticket at all onboard the train - and if they had done so, they were entitled to only sell you a single ticket (which, on a weekend, is just 10p less than a return).

    Unfortunately I don't think you have any recourse in respect of this - the refund that you will hopefully receive in respect of what you paid for the Penalty Fare should, hopefully, cover the difference. I suppose next time you could ask the Ely ticket office to sell you what is known as an 'overdistance excess' for your ticket, which would effectively convert your Stevenage to Ely ticket into a Boundary Zone 4 to Ely ticket. However, ticket offices are not obliged to sell such excesses and many either refuse or say they are unable to do so.

    In either case, it appears that the amount you have ended up out of pocket through this all has been a 'mere' £2.50, as a Stevenage to Ely Super Off-Peak Day Return is £12.50, and a Stevenage to Boundary Zone 4 Super Off-Peak Day Single is £10.10, so that's a total of £22.60, whereas a Super Off-Peak Day Return from Boundary Zone 4 to Ely is £20.10. Unless of course you were sold a more expensive ticket onboard?
     
  27. ten7

    ten7 Member

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    Appeal rejected on the following justification.

    “When a penalty fare is issued it is calculated at twice the relevant anytime single fare to the next (or other) station stop on that service or £20.00, whichever is the greater amount. Although your comments about the penalty fare calculation have been noted, the value of a National Rail penalty fare is set by the government, not by the rail operator.
    The penalty Fare guidelines 9.1 states "Where a penalty fare is charged under regulation 5(1) to a person travelling by, present on, or leaving a train, the amount of that penalty fare is £20 or twice the full single fare applicable, whichever is greater".
    Having taken into consideration all the points raised to date, we regret to advise that your appeal has been unsuccessful.”
     
  28. Termy

    Termy Member

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    Having read the advice so far in this thread, and having read over the regulations quoted earlier... sounds like this was incorrectly rejected! Might be worth escalating upwards to the relevant authorities. Not sure what these are though, so someone else will be best placed to say who to take it to!
     
  29. furlong

    furlong Established Member

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    You can appeal up to 3 times, so you can try again, pointing out their failure to take into account the "day and time of the journey", as ForTheLoveOf explained earlier in this thread. Nowhere do the regulations say that the "Anytime" fare is used. The term used is defined as:
    (On the contrary, if it was the intention always to use the Anytime fare, then the day and time of the journey would NOT have to be taken into account, as, by definition, the Anytime fare applies at "any time" and does not depend on the day or time. I think there might also be some routes now that no longer have Anytime fares - does anyone have an example?)
     
  30. ForTheLoveOf

    ForTheLoveOf Established Member

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    There is good news contained within this disappointing news. As the Appeals Body has made a decision on the Penalty Fare appeal, you can now no longer be prosecuted for any relevant offence in relation to this incident.

    The further goods news is that you have three stages of appeal available to you in total, so there are two remaining. You can raise an appeal at any stage on any of the grounds contained within the Regulations - you don't have to maintain the same grounds throughout.

    I would submit a second-stage appeal along the following lines:
     
  31. ten7

    ten7 Member

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    Yep, submitted another appeal along those lines.
     

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