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Penalty Fare Notice - Feel it is unjust

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andygb

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On 11th March I received a penalty fare notice which I feel has been issued unfairly.
I have never had a penalty fare notice before and have never induged in fare dodging.
My local station has never in the 25 years I have lived here, had a ticket machine/ticket office, and for the past nine weeks (and counting) the permit to travel machine has been out of order.
The trains are 2 carriage ones, with a guard in the rear carriage (who makes sure everyone has got on OK before he closes the doors etc), so I sit next to the cab when I travel, hoping that he/she will sell me a ticket - whi happens most of the time. If the guard does not appear, then I leave the train, catch my connection and pay at my destination station, something which until 11th March was understood by station staff, because they know the situation at my station.
On 11th March however, the conductor stayed in their cab (they were on their mobile), so I had to get across to the other platform to get my connection - I would have had to wait 24 minutes if I had missed it, but there is 2 minutes leeway, so unless my train is delayed it all works OK.
When I got to the destination station however, and asked for a return fare from my station, the two guys (revenue protection) obviously didn't like any of my answers, refused to sell me a return fare and issued me with a penalty fare notice.
The questions were:
Why didn't you buy a ticket? - Because there isn't a ticket machine and the permit to travel machine is out of order.
Why didn't you buy a ticket from the conductor? - Because the conductor didn't venture out of their cab.
Why didn't you purchase a weekly season ticket? - Because I only travel 2/3 times a week.
I have appealed twice against this - I haven't yet paid the penalty fare - and both letters have stated that I should have bought a ticket prior to getting on the train!
The latest letter has gone further than that, and stated that the connecting train which I caught (and have caught on many occasions) is not a "valid connection", that there is only two minutes between my train arriving and the connecting train departing, and therefore I should not be catching that train but the one in 24 minutes time!
I feel that I have done everything possible to purchase a ticket every time I catch a train from my local station.
The other thing which I mentioned, was that all my fares are reimbursed daily by my course provider, so there is no need for me to try to avoid paying the fare not that I would anyway because I never have.
Sorry for the long post, but I felt I had to include every detail I could remember.
I hope that someone can help.
Cheers.
 
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najaB

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My local station has never in the 25 years I have lived here, had a ticket machine/ticket office, and for the past nine weeks (and counting) the permit to travel machine has been out of order.
If that is the case, then you cannot be issued a penalty fare in regards of the first train. The Penalty Fare Rules make this clear:
7.3 An authorised collector must not charge a penalty fare under rule 6.2 if any of the following circumstances applied at the station where the person joined the relevant train.
a. There were no facilities available to issue the appropriate ticket or other authority for the journey which that person wanted to make.
I don't believe that the 'connection time' argument holds any water, others may disagree. Regardless, there is no documented requirement for you to incur delay on your journey in order to purchase a ticket at an intermediate station.
 

Camden

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What stations are involved? And who is your MP?

If ticket purchase facilities are not being provided at the station and not on the train either (by the guard staying in their cab so you can't reach them) then I would expect your MP to be getting in contact with the train company asking what on earth they think they are doing to his/her constituents.

As for the penalty notice, some expert advice would seem to be in order. As far as I can see you attempted to buy a ticket for your whole journey at the first available opportunity, and can't see how citing minimum connection times makes a jot of difference to that. As to why you didn't buy a weekly ticket, that is also absolutely none of their business.
 
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DaveNewcastle

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The long post as you call it is, indeed helpful. But there's just one niggling detail that prevents me from being confident that you have done nothing wrong. Maybe two niggling details. But before I elaborate, let me just make one point to you: a Penalty Fare is not a suggestion of fare dodging. That would have been a more severe accusation and I can see why you would be distressed by that, but this is just a surcharge for not having a ticket.

Firstly, at the connecting station; we shouldn't be sidetracked into the 'minimum connection time' argument. These times are published for a slightly different purpose. The important question is this: was there a reasonable opportunity for you to buy the ticket there? (for example: could you have asked the guard on the platform ? was there a ticket machine on the platform ? was the ticket office on the platform ?)

At the terminal station, did the layout of the place lead you inevitably into the path of the Inspectors, or before you got to them, did you pass a ticket office, a ticket machine or a ticket-seller on your way towards that exit ? and if not, would any of those options have been readily available if you had chosen to use them?

I ask because, whatever your regular habit might have been, then if the Inspectors who interviewed you believe that you did have such an opportunity to buy a ticket but that you didn't take that opportunity, then I can see why the Company would feel justified in demanding payment of the Penalty Fare.

Despite my hesitation, I do agree that it is appropriate to make representations for the Company to make adequate ticket selling facilities available for its passengers. That would reduce incidents like this, but it won't assist your query.

Also, please don't be side-tracked by the season ticket question, either. It's not an unreasonable question for someone to ask, but if that's not a relevant solution to your circumstances, then that's the end of it.

The only real issue determining your appeal against the Penalty Fare is whether or not there were the means to buy a ticket during the course of your travel.

But please remember, it is not an accusation of fare dodging. Our Fares and Ticketing Guide has this to say about Penalty Fares: 10.6 When are you liable to pay a Penalty Fare, and I had attempted to summarise the position in Section 8.2.4 Penalty Fares if you scroll down to that section.
 

jkdd77

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Neither the minimum connection time nor the availability of purchase facilities at the intermediate station nor the OP's actions at the destination station affect the (in)validity of the PF.

They may well affect the success or otherwise of a prosecution for fare evasion, but a PF should not have been issued if fare evasion is suspected.

Assuming the OP's account is accurate, the PF is plainly statutorily invalid by virtue of Regulation 6(2)(a) of the Penalty Fares Regulations 1994, due to the absence of purchase facilities at the OP's origin station
https://www.ircas.co.uk/docs/SRA Penalty Fare Rules 2002.pdf
(2)The circumstances to which this regulation applies are that, at the time when and at the station where the person in question boarded the relevant train, or, in the case where a person has boarded the relevant train after travelling on a preceding train, that, at the time when and at the station where the person in question boarded that preceding train,
(a) there were no facilities in operation for the sale of the appropriate ticket or other authority to make the journey being or having been made by that person;"

This is subject to 6(3):
(3)Paragraphs (1) and (2) of this regulation shall not prevent a person from being charged a penalty fare where he had been invited by anybody acting on behalf of the operator of the relevant train or any preceding train to obtain a ticket or other authority while travelling on or present on the relevant train or that preceding train.

The question of opportunity to purchase at an intermediate station is therefore completely irrelevant to the (in)validity of the PF, as also is the OP's actions at the destination station.

However, if the OP "has already appealed twice against the PF", and received replies saying that he "ought to have purchased a ticket before getting on the train", then this yet again shows the complete lack of independence and impartiality of the appeals system, but does not alter the complete invalidity of the PF.

The OP now has to choose between:
1) paying the invalid PF (since more than 21 days have passed since the date of the incident, admin fees have likely now been added, so even an attempt to pay £20 may now itself be refused or claimed to be merely part-payment) and, trying to claim it back later via Transport Focus, and, perhaps, as a last resort, the county court, and;
2) attempting once more to pay the correct fare owed, with the strong probability that the TOC will refuse to accept the payment, but instead cancel the (invalid) PF and seek to prosecute for fare evasion. The success or otherwise of that prosecution would likely depend on the answers to the questions raised by DaveNewcastle. A prosecution for the byelaw 18 offence cannot succeed for the same reason that the PF is invalid- the lack of purchase facilities at the origin station.

The course of action chosen would depend not only on the OP's actions, but also on the OP's attitude to risk.

For what it is worth, I agree with the other posters that there is no obligation on a passenger who has genuinely not had a prior purchase opportunity to delay their journey in order to buy a ticket at an intermediate station, but of course such a passenger should take any opportunity offered.

In my experience, guards are usually too busy dispatching their train to sell tickets, and, when I previously lived near Patchway station, any attempt to obtain a ticket from the guard before boarding always met with a polite refusal on those grounds. Furthermore, a connection time of two minutes (whether or not an official connection) probably does not leave enough time to buy a ticket from a TVM even if one is available on the platform of travel.

If the OP genuinely did not have an opportunity to purchase at the intermediate station without delaying himself and actively attempted to purchase a ticket at the first opportunity at the destination station, without any opportunity to buy on board the connecting train, then he would appear not to be guilty of fare evasion. Assuming all this to be correct, then personally, were in the OP's position, I would choose option 2.

However, it is very easy for me to be militant in giving advice, when it is not me who would have to face the stress, hassle, cost, and potentially career-ruining consequences of a conviction for fare evasion.
 
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najaB

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If the OP genuinely did not have an opportunity to purchase at the intermediate station without delaying himself and actively attempted to purchase a ticket at the first opportunity at the destination station, without any opportunity to buy on board the connecting train, then he would appear not to be guilty of fare evasion.
I concur with that assessment, and suggest that the OP paraphrases your post and contacts the prosecutions team directly (rather than trying to appeal through the appeals process).
 

DaveNewcastle

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andygb, you might now have read my earlier reply and the following reply by jkdd77, and then wondered if you are being given opposing advice. It seems to me that jkdd77 has disagreed with some of my reply, and on reflection I can see that I have not been as clear as I could have been. I apologise for that.

So, for clarity . . . .
The prior post by najaB made the assessment that, in the circumstances you descibe, the Penalty Fare was incorrectly issued.
I agree. Nothing in my reply sought to undermine that deduction.
I recognise that you had made the same representation to the Company's 'appeals' team, as you have on here, but that they disagreed with that assessment.
I also recognise that you considered that you had been accused of fare evasion.
I offered an attempt at understanding the predicament you were in, by giving you the link to this forum's advice on the circumstances in which Penalty Fares are, and are not, payable.
I offered an attempt at understanding the Company's thinking which would have led to the responses thay have given to your appeals.
I believe that the combination of all of those facts has armed you well with the tools to assess what you asked: is it unfair and/or unjust?

If my post led you to think that I disagreed with the prior post by najaB, and I think that jkdd77 seems to have deduced that I did disagree, then I apologise for my lack of clarity.

I did not state that the Penalty Fare is valid because there was an opportunity to pay at the intermediate station.
I did state that the Company will probably have made that assumption; and not that you had been fare evading.

Turning to the question which jkdd77 then raised of the options and odds available to you, then I hope this additional clarification will assist. Yes, the Penalty Fare seems to be unenforceable; yes, the Company appears to think otherwise; and, if that dispute is not resolved in your favour, then the risk you face is that the Company turns to the alternative strategy of persuing a Byelaw conviction against you in the Magistrates Court (being unable to produce a valid ticket on request); the success of that prosecution, unlike the Penalty Fare, will depend on the answers to my questions about availability of opportunities for you to buy a ticket before reaching those Inspectors.
I suggest that you need to assess the outcome of that situation before deciding how to proceed, because the answer to those questions informs your risk assessment. You need to know whether a failure in continuing to dispute the PF will lead you to a) having to pay it, or b) a bigger loss.

Apologies again for any lack of clarity.
 

jkdd77

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then the risk you face is that the Company turns to the alternative strategy of persuing a Byelaw conviction against you in the Magistrates Court (being unable to produce a valid ticket on request)

Apologies again for any lack of clarity.

I presume you mean pursuing a RRA prosecution for fare evasion, since a byelaw 18 prosecution cannot possibly succeed owing to the absence of purchase facilities at the OP's station of origin?
 

DaveNewcastle

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I presume you mean pursuing a RRA prosecution for fare evasion, since a byelaw 18 prosecution cannot possibly succeed owing to the absence of purchase facilities at the OP's station of origin?
jkdd77, I've done my best to look into the minds of the Revenue Protection unit of whichever Railway Company it is to give andygb some understanding of the situation he is in, and a hint of what might lie ahead if he fails in continuing to challenge the Penalty Fare. But without knowing the Company, the people, the places and the facts of the incident, then sadly my ability to see into other minds is falls short of your expections. I can't see how I could know the answer to that question, but my hunch was based on the knowledge that some Companies failed PFs will default to a Railway Byelaw prosecution.

The evidential fact you raise about "the absence of purchase facilities at the OP's station" seems to me to be as persuasive in undermining a PF as it is in a Byelaw 18 prosecution, so if one would fail then both would fail.
Conversely, if one succeeds, then the other would succeed (on the same facts).
If that evidential fact is likely to be successfully demonstrated to be true as a challenge to a Byelaw 18 prosecution, then it would equally successfully have undermined the Penaly Fare in the first place.

I do apologise to you andygb, if I am making this more confusing for you than neccessary. I had hoped to be helpful!
 

andygb

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Thanks for all the replies folks.

DaveNewcastle, I am particularly grateful to you because of the information and links which you have supplied.
Just to clarify, there are NO trackside ticket machines at either the connecting station or the destination station, so had I decided to get a ticket at the connecting station (Strood, Kent), then I would have had to go outside the barriers there, to purchase a ticket, the same as I would if I had wanted to purchase a ticket at my destination station (Chatham, Kent). If I had gone outside the barriers at Strood, then I would definitely have missed my connection.
At Chatham, I went straight to the guy at the barriers and asked to buy a return ticket from my home station, he refused and asked further questions, then issued the penalty fare notice.
Despite me offering to buy a ticket, he at no point allowed me to do that.
 

andygb

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What stations are involved? And who is your MP?

If ticket purchase facilities are not being provided at the station and not on the train either (by the guard staying in their cab so you can't reach them) then I would expect your MP to be getting in contact with the train company asking what on earth they think they are doing to his/her constituents.

As for the penalty notice, some expert advice would seem to be in order. As far as I can see you attempted to buy a ticket for your whole journey at the first available opportunity, and can't see how citing minimum connection times makes a jot of difference to that. As to why you didn't buy a weekly ticket, that is also absolutely none of their business.

I am loathe to give my home station details, because there are people on another forum reading this (I have tried to get advice elsewhere as well), but it is on the Southeastern region - Medway Valley Line.
 

swt_passenger

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Just to confirm is this possibly one of those 'Northern' penalty notices, or is it definitely a pukka penalty fare notice as used elsewhere in the country?

That might affect some of the analysis so far...

This post no longer relevant, as some of the OP's posts hade been delayed...
 
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island

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Just to confirm is this possibly one of those 'Northern' penalty notices, or is it definitely a pukka penalty fare notice as used elsewhere in the country?

That might affect some of the analysis so far...

Given the OP mentions Strood, it is a pretty safe bet that it is an actual Penalty Fare.
 

najaB

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Given the OP mentions Strood, it is a pretty safe bet that it is an actual Penalty Fare.
To be fair to swt_passenger, that post wasn't visible at the time he asked the question. Given that it is a genuine penalty fare, it should be cancelled based on the reasons given above by jkdd77 and DaveNewcastle.

andygb, have your appeals been directly to Southeastern(?), or with the penalty fares appeal service?
 

DaveNewcastle

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Just to clarify, there are NO trackside ticket machines at either the connecting station or the destination station, so had I decided to get a ticket at the connecting station (Strood, Kent), then I would have had to go outside the barriers there, to purchase a ticket, the same as I would if I had wanted to purchase a ticket at my destination station (Chatham, Kent). If I had gone outside the barriers at Strood, then I would definitely have missed my connection.
At Chatham, I went straight to the guy at the barriers and asked to buy a return ticket from my home station, he refused and asked further questions, then issued the penalty fare notice. . . . .
Thatnks for the additional details.
I am more confident that your Penalty Fare was indeed wrongly issued, but even more puzzled as to why the Company has refused your appeal. The only remaing detail which could explain it is some arrangement for buying tickets at your origin station which the Company seems to think was available (e.g. the PERTIS machine had been repaired or replace the day before and no fault had been reported), while you remain as confident as ever that there was none.

If you are adequately sure that there was no working facilities available on the day of the incident, then just pay the fare due, with a cover note referring to the PF and explaining very simply the fact that there were no working facilities or opportunities to pay during that journey.

BUT. . . If you are any doubt about the facilities to pay on that date, then I couldn't assure you that you would not soon find yourself facing a prosecution, and that part of the evidence against you would be the opportunity to pay that you are unsure about.
 

bb21

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To be fair to swt_passenger, that post wasn't visible at the time he asked the question.

Yes, please bear in mind that a new member's posts will require approval in this area until they reach 5 posts, so there may be a time delay at times.
 

andygb

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To be fair to swt_passenger, that post wasn't visible at the time he asked the question. Given that it is a genuine penalty fare, it should be cancelled based on the reasons given above by jkdd77 and DaveNewcastle.

andygb, have your appeals been directly to Southeastern(?), or with the penalty fares appeal service?

My appeals have gone direct to the Appeal Service, I have not been in contact with Southeastern, except verbally with barrier staff who think I have been treated harshly (although not too surprised by the actions of the revenue protection staff) considering that my station has no facilities for ticketing.
 

andygb

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Thatnks for the additional details.
I am more confident that your Penalty Fare was indeed wrongly issued, but even more puzzled as to why the Company has refused your appeal. The only remaing detail which could explain it is some arrangement for buying tickets at your origin station which the Company seems to think was available (e.g. the PERTIS machine had been repaired or replace the day before and no fault had been reported), while you remain as confident as ever that there was none.

If you are adequately sure that there was no working facilities available on the day of the incident, then just pay the fare due, with a cover note referring to the PF and explaining very simply the fact that there were no working facilities or opportunities to pay during that journey.

BUT. . . If you are any doubt about the facilities to pay on that date, then I couldn't assure you that you would not soon find yourself facing a prosecution, and that part of the evidence against you would be the opportunity to pay that you are unsure about.

I may well send them the fare tomorrow and see what they do.
I am absolutely sure about the facts - as is every other passenger travelling from my station.
I get very cynical about all this, and wonder if they want to close our station down by giving passengers no chance to buy a ticket then trying to fine them.
Maybe we should all stay at home rather than work or go on courses?
 

furlong

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I may well send them the fare tomorrow and see what they do.
I am absolutely sure about the facts - as is every other passenger travelling from my station.
I get very cynical about all this, and wonder if they want to close our station down by giving passengers no chance to buy a ticket then trying to fine them.
Maybe we should all stay at home rather than work or go on courses?

(more extracts from the rules)

4.15 We do not recommend that large numbers of unstaffed stations are included in a penalty fares scheme. However, unstaffed stations can be penalty fares stations as long as they have at least one self-service ticket machine or one ‘permit to travel’ machine. Suitable processes must be in place to make sure that the machines are checked regularly and any faults put right quickly. A system must be in place which allows authorised collectors to confirm that these machines are working properly, and this must be effective. The instructions given to authorised collectors must tell them that if they are not sure whether the machines are working properly, they must give passengers the benefit of the doubt.

13.1 The SRA (*) may issue a prohibition notice preventing an operator from charging penalty fares if it has reasonable grounds for suspecting that the operator is not following any part of the Regulations, these rules or their own approved penalty fares scheme, or is operating their scheme in a way which the SRA reasonably considers does not provide sufficient protection for passengers.
(*) Responsibility transferred to the DfT I believe.


"Reasonable grounds to suspect" is a low threshold - the onus seems to be very much on the company to produce evidence to counter any such suspicions were you to draw this to the attention of the DfT.
 

jkdd77

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The PF Regulations place the burden of proof on the TOC:
9. (1)Where a person charged a penalty fare has in due time provided the operator by or on whose behalf the penalty fare was charged with a relevant statement, in any proceedings for the recovery of that penalty fare, it shall be for that operator to show that any of the facts described in the relevant statement is not true.

This would not be relevant to a criminal prosecution (which is not concerned with recovery of the PF), but in any case it would be for the prosecutor to prove every aspect of their case beyond reasonable doubt, which is a higher standard still.

Based on the OP's initial post and the reference to minimum connection times, I think that the kangaroo appeals body is not claiming that ticket purchase facilities existed at his origin station, but is instead claiming that the OP was obliged to buy at the intermediate station.
 

najaB

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Based on the OP's initial post and the reference to minimum connection times, I think that the kangaroo appeals body is not claiming that ticket purchase facilities existed at his origin station, but is instead claiming that the OP was obliged to buy at the intermediate station.
That's the way I read it as well. I suggest that the OP writes to the TOC directly to query why they have been issued a Penalty Fare when there was no prior opportunity to purchase - optionally enclosing a cheque/postal order for the fare.
 

andygb

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Thanks for your post Furlong, that does make it seem as though I have a chance of fighting this.
--- old post above --- --- new post below ---
That's the way I read it as well. I suggest that the OP writes to the TOC directly to query why they have been issued a Penalty Fare when there was no prior opportunity to purchase - optionally enclosing a cheque/postal order for the fare.

I have written two letters to the Enforcement agency (revenue protection and appeal service) and both times I stated that there was no prior opportunity to purchase - no ticket machine/permit to travel machine not working.
By TOC, do you mean Southeastern?
If I start correspndence with them, won't it simply add to my problems, and how would they then deal with the revenue protection?
 

furlong

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The problem might be one we think we have seen before on this forum, namely that the appeals body appears amateurish at times and makes mistakes.

Did you appeal just in general terms, or did you set out proper reasoning with reference to the relevant paragraphs from the rules of the scheme and the penalty fares regulations?

If the reply really did say you needed to delay your journey at an intermediate station then my response would be to ask under which paragraph this is the case because in my reading, the opposite is true, quote the relevant parts of the documentation, and set out the appeal again in full, referencing the relevant paragraph numbers. (If I was confident enough about my case, I'd probably also add a short cover letter and copy the correspondence to the DfT, as the regulator, listing each of the apparent failures, pointing out its specific duties to protect passengers and asking it to act directly upon the evidence I supplied and suspend the scheme forthwith etc.)
 

najaB

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By TOC, do you mean Southeastern?
If I start correspndence with them, won't it simply add to my problems, and how would they then deal with the revenue protection?
Yes, I do mean Southeastern. The appeals bodies work on behalf of Southeastern, who should actually have more of a clue than their contractor appears to have!
 

andygb

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The problem might be one we think we have seen before on this forum, namely that the appeals body appears amateurish at times and makes mistakes.

Did you appeal just in general terms, or did you set out proper reasoning with reference to the relevant paragraphs from the rules of the scheme and the penalty fares regulations?

If the reply really did say you needed to delay your journey at an intermediate station then my response would be to ask under which paragraph this is the case because in my reading, the opposite is true, quote the relevant parts of the documentation, and set out the appeal again in full, referencing the relevant paragraph numbers. (If I was confident enough about my case, I'd probably also add a short cover letter and copy the correspondence to the DfT, as the regulator, listing each of the apparent failures, pointing out its specific duties to protect passengers and asking it to act directly upon the evidence I supplied and suspend the scheme forthwith etc.)

I appealed in what I thought was logical, setting out the reasons why I could not buy a ticket prior to boarding the train, saying that the conductor remained in his cab during the journey and when I reached the connection station (he was on his phone), and I also set out why I did not buy a ticket at the connection station (because I would have missed my connection.
I understand that I did indeed reply in general terms, not quoting any of the relevant rules etc.
However, from their latest reply, their whole argument seems to rest on the connection, because they refer to the train which I caught (and have caught on many occasions) as quote:

"From the ticket sales records, it has been confirmed that the opportunity to buy a ticket for the throughout journey did exist at the interchange station. The 0857 from Strood daparts too near the 0856 arrival to be classified as a valid connection"

Bearing in mind that I have used the 0857 (which interestingly enough is shown as the 0858 on the Network Rail site) connection many times, why would it not be classified as a "valid connection"?
 

MikeWh

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"From the ticket sales records, it has been confirmed that the opportunity to buy a ticket for the throughout journey did exist at the interchange station. The 0857 from Strood daparts too near the 0856 arrival to be classified as a valid connection"

If you relied upon that connection for your journey and then claimed delay repay compenstion if you missed it they wouldn't pay. It also wouldn't help you if the delay caused you to miss an advance ticket booked train. There is absolutely no need to delay a journey if the connection does work just because you haven't had an opportunity to buy a ticket before that point.
 

cuccir

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I think you need to ask them where in the Penalty Fares regulations it mentions anything about valid connections....
 

andygb

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If you relied upon that connection for your journey and then claimed delay repay compenstion if you missed it they wouldn't pay. It also wouldn't help you if the delay caused you to miss an advance ticket booked train. There is absolutely no need to delay a journey if the connection does work just because you haven't had an opportunity to buy a ticket before that point.

Thanks Mike I appreciate that.
I think that my next course of action will be to send another letter, quoting the various rules, and also a cheque for the journey which I made.
I am definitely digging my heels in on this one.
I may have to start invoicing them for the cost of postage and the time it has taken to write the letters:)
 

furlong

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"From the ticket sales records, it has been confirmed that the opportunity to buy a ticket for the throughout journey did exist at the interchange station. The 0857 from Strood daparts too near the 0856 arrival to be classified as a valid connection"

Then they seem to be making up their own rules. Report them straight to the DfT and demand action.
 

najaB

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Scotland
I think that my next course of action will be to send another letter, quoting the various rules, and also a cheque for the journey which I made.

I am definitely digging my heels in on this one.
As well you should. I have a bit of a reputation in these parts for taking the TOC's side, but in this case - assuming everything is exactly as you have described - they are in the wrong and don't have a leg to stand on.
 
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