Re-appealing Penalty Fare imposed (and first appeal turned down) after ticket barrier "ate" valid ticket

[dciuk]

It may be worth noting that revenue protection staff are not the same as gateline staff, and wouldn't have access to open the gate to access the bin.

But not unreasonable to expect them to be able to find someone who can access the bin

 

[John Palmer]

I am sorry that my previous post was couched in such cryptic terms. The reason for this was that the £13.95 receipt tendered as evidence of the season's purchase on the day of the incident did indeed raise the possibility that your son had used a child ticket for an adult's journey. Whilst the appeal against the penalty fare barred prosecution for a 'travel with intent to avoid payment of the fare' offence under Section 5(3)(a) Regulation of Railways Act 1889 in relation to the homeward journey to Eastbourne, the statement lodged in support of the PF appeal plainly indicated that the morning journey outward from Eastbourne had been made with the same ticket. The Penalty Fares Regulations would have conferred no immunity from prosecution for that outward journey. Consequently, aside from the issue of the 50% discount flowing from the 16-17 Saver, the appeal documentation itself would have supplied all the evidence required to prove a Section 5(3)(a) offence in respect of that outward journey, and a prosecutor would have little difficulty identifying your son as the appellant submitting that evidence, as the uploaded copies do not conceal his identity. Given that material uploaded to this board is available for all to see, including railway prosecutors, I was reluctant to express my concerns in terms that might attract such a prosecutor's attention.

However, the fact that your son was entitled to apply a 50% discount to the cost of the weekly season by means of his 16-17 Saver puts a very different complexion on matters! The £13.95 receipt is consistent with purchase of an adult season with 50% 16-17 Saver discount, indicating that outward travel in the morning was made with a valid ticket and that the risk of prosecution for that journey does not arise. So we can return to the grounds on which a successful appeal against the PF might be mounted.

I agree with you that the erroneous statement on the PF Notice that it was issued to a child does not suffice as the basis for claiming that the Notice was not issued in accordance with the regulations, and that the amount of the penalty fare correctly includes the full single fare applicable to an adult's ticket. So, what other grounds are available?

Regulation 4(1) of the 2018 Regulations provides that:

“A person travelling by, present on, or leaving a train must, if required to do so by or on behalf of an operator, produce a valid travel ticket.”

I note that your son was approached for inspection of the ticket he had taken from the Eastbourne machine after the barrier had opened to permit his egress. I suggest that the opening of the barrier to allow egress must represent the end of the period in which a passenger can be said to be 'leaving a train', and that the obligation to present a valid travel ticket ended at that moment. If that is correct then there was no lawful demand for the ticket's production and no right to charge a penalty fare when a ticket valid for the completed journey was not produced. In that sense the penalty fare was not charged in accordance with the Regulations' requirements, and this will be a valid ground for appeal under Regulation 16(3)(a).

I also consider Regulation 16(3)(c) to be an applicable ground for appeal:

“the appellant owns a season ticket valid for the journey in question but was not in possession of the season ticket at the time the penalty fare was charged”

That seems to me to capture exactly the circumstances in which your son found himself: he had that morning purchased a season ticket valid for the journey just completed (the documentary evidence supporting this lies in the receipt in conjunction with the 16-17 Saver railcard), but was not in possession of it due to the Eastbourne barrier, for whatever reason, having failed to disgorge it.

I also note that Regulation 16(3)(c) specifically contemplates 'ownership' of a season ticket, which I take to involve recognition that a season ticket-holder has the right to own and keep such ticket. Where a railway operator, confronted with a passenger's plausible explanation that its equipment has retained a ticket he owns, declines to take reasonable steps to investigate the position and restore the ticket to its owner if found within the machine, it must bear the consequences of that refusal. In principle the railway's refusal to attempt restoration of the ticket to its owner might formerly have been actionable in detinue, but this is a tort (legal wrong) that was abolished by the Torts (Interference with Goods) Act 1977 and would now appear to be actionable instead as the tort of wrongful interference with goods belonging to the ticket-holder, for which he may recover damages representing the extent of the loss flowing from the ticket's wrongful retention by the railway (for a 10-journey season used to make 2 journeys before its loss to the ticket-holder, four-fifths of its purchase price).

I suggest that a claim for partial refund of the weekly season's cost should initially be made to the company managing Eastbourne station. Regretfully, I don't have much confidence that the appeals body will correctly uphold either a second stage or final appeal against this penalty fare, but in the somewhat unlikely event of the operator subsequently pursuing the penalty fare through the civil courts if it remains unpaid, wrongful interference with goods is potentially available as the basis for a counterclaim and set-off.

Automerged addition:

On re-reading the thread I note from post #11 that the exit barrier did not open after the season was inserted and that this is apparently the reason why railway staff approached. That considerably diminishes the force of the argument there was no lawful demand for production of a ticket, to the point that it is not one that I would pursue. The Regulation 16(3)(c) ground of appeal still appears to me to hold up. The appeal panel should be invited to draw the appropriate inference from the fact that the official who issued the penalty fare declined to take any steps to verify the explanation offered by the passenger when invited to do so, notwithstanding the availability (and production?) of a ticket purchase receipt issued on the same day that was consistent with the explanation given. Are any previous weekly season tickets available as evidence that it is the OP's son's practice to make regular use of these?

 

[MotCO]

I note that your son was approached for inspection of the ticket he had taken from the Eastbourne machine after the barrier had opened to permit his egress. I suggest that the opening of the barrier to allow egress must represent the end of the period in which a passenger can be said to be 'leaving a train', and that the obligation to present a valid travel ticket ended at that moment. If that is correct then there was no lawful demand for the ticket's production and no right to charge a penalty fare when a ticket valid for the completed journey was not produced. In that sense the penalty fare was not charged in accordance with the Regulations' requirements, and this will be a valid ground for appeal under Regulation 16(3)(a).

This is presumably supported by the fact that at a journey's end, a ticket would be retained by a barrier and therefore there is no ticket available to present to an officer for inspection. If the obligation to present a ticket continues after passing through a barrier, then there would be many passengers who would be caught in this way.

 

[Haywain]

then there would be many passengers who would be caught in this way.

There are many people caught in this way, therefore I have doubts that the opening of the barrier can be claimed as ending the journey or the obligation to show a valid ticket.

 

[sheff1]

There are many people caught in this way, therefore I have doubts that the opening of the barrier can be claimed as ending the journey or the obligation to show a valid ticket.

I cannot understand how there can still be an obligation to show a valid ticket once said ticket had been retained by a barrier. If a ticket is retained by an authorised person conducting a physical check at a station there can be no obligation to present a ticket again to a second authorsised person, so can you explain why a ticket being retained by a barrier is somehow different ?

 

[Starmill]

What was the timeframe between your son putting the weekly ticket into the gate and their being asked for their details for the purposes of the Penalty Fare?

 

[Haywain]

I cannot understand how there can still be an obligation to show a valid ticket once said ticket had been retained by a barrier.

I'm referring to tickets not retained by the barrier. Clearly if the barriers retains the tickets there can be nothing to show.

 

[AlterEgo]

There are many people caught in this way, therefore I have doubts that the opening of the barrier can be claimed as ending the journey or the obligation to show a valid ticket.

I agree. A passenger can be deemed as "leaving the train" until they exit the railway property in my view.

I fear we are about to mount another giant blancmange of an appeal, when the only ground really worth considering here is compelling reasons; the railway's own property kept the passenger's ticket rendering him unable to show it for inspection, and the inspectors failed to allow for this. I think that is about the long and short of this appeal.

 

[Bletchleyite]

I would personally be very tempted to exhaust the appeals (thus statute barring prosecution) and then basically say "so sue me" and not pay. The TOC is unlikely to actually do this because I don't think it could be proven on the balance of probabilities that the son's version of events did not happen as there is plenty of evidence in favour of it, from the purchase of the season ticket to the known issues with this particular type of gateline which allows a ticket to be forced in. We pretty much never see cases here of TOCs pursuing appealed but still due PFs in the civil courts, least of all against a child.

However I am not a lawyer and this decision (as it isn't zero risk) is for the OP to make.

Unfortunately getting anything back for the missing ticket is very unlikely, though.

It's also of note that if taking this line the son should be sure to NEVER make even the tiniest ticket infringement with that TOC (or if it's TIL that is handling it, any TOC that uses them) for the foreseeable, because they will almost certainly go straight to prosecution if he does. Once the appeals are exhausted, and the son doesn't think he can guarantee this, it might be worth 50 quid to make it go away properly, and a representation to customer services has some chance of getting it refunded, albeit a small one.

 

[Watershed]

I agree. A passenger can be deemed as "leaving the train" until they exit the railway property in my view.

I fear we are about to mount another giant blancmange of an appeal, when the only ground really worth considering here is compelling reasons; the railway's own property kept the passenger's ticket rendering him unable to show it for inspection, and the inspectors failed to allow for this. I think that is about the long and short of this appeal.

Appealing on the basis of a season ticket being held is a non-discretionary ground of appeal and would appear to be the strongest option to me.

In other words, if the appeals body accepts that a season ticket was held (which is not in dispute in this case - they even tacitly admitted it in the previous appeal response), they are obliged to allow the appeal.

Of course, the appeals body's competence is questionable, but I would focus on appeals which they are obliged to allow rather than ones which are discretionary.

 

[Bletchleyite]

Appealing on the basis of a season ticket being held is a non-discretionary ground of appeal and would appear to be the strongest option to me.

The problem with that ground is that it can't be proven because the season ticket is not held - it was shoved in a barrier and left there - and weeklies can't be reissued. Were it a monthly that would be the correct ground, and the reissued season would be able to be produced to prove it. The ground you mention exists so if you forget your season you can show it retrospectively - but he can't.

I still think there's a reasonable chance the third level of appeal will see sense, though.

 

[sheff1]

I'm referring to tickets not retained by the barrier. Clearly if the barriers retains the tickets there can be nothing to show.

Fair enough. The post you replied to referred to tickets which were retained so I assumed that was what you were also referring to.

 

[Watershed]

The problem with that ground is that it can't be proven because the season ticket is not held - it was shoved in a barrier and left there - and weeklies can't be reissued. Were it a monthly that would be the correct ground, and the reissued season would be able to be produced to prove it. The ground you mention exists so if you forget your season you can show it retrospectively - but he can't.

I still think there's a reasonable chance the third level of appeal will see sense, though.

The receipt which was attached previously is sufficient proof in my view.

What is the likelihood of someone who lives in Bexhill and goes to college in Eastbourne buying a £13.95 ticket from Eastbourne ticket office, that isn't a season ticket from Bexhill to Eastbourne...

That is on top of the fact that GTR can search through their own records (e.g. using the photocard number associated with the season ticket) to find that such a season ticket was indeed bought for the OP's son. In fact, the OP may wish to submit a further Subject Access Request to GTR asking for the purchase records.

 

[Man of Kent]

What was the timeframe between your son putting the weekly ticket into the gate and their being asked for their details for the purposes of the Penalty Fare?

The train would appear to be 1U43 1552 ex Ore due Eastbourne at 1631, and the PFN was issued 9 minutes later.

Does the X after the fare on the Pevensey Bay ticket indicate it was paid for by card? If so, it may be possible to prove it was not purchased by the OP's son.

 

[AlterEgo]

Appealing on the basis of a season ticket being held is a non-discretionary ground of appeal and would appear to be the strongest option to me.

In other words, if the appeals body accepts that a season ticket was held (which is not in dispute in this case - they even tacitly admitted it in the previous appeal response), they are obliged to allow the appeal.

Of course, the appeals body's competence is questionable, but I would focus on appeals which they are obliged to allow rather than ones which are discretionary.

Well, "held" means they would need to show it in retrospect, and prove its existence to the appeal. Which they can't do.

From Southern's site:

If you find that you don’t have your season ticket once you're on the train, you’ll be asked to give your details and to pay the standard single fare for your journey (which will be refunded on production of your valid season ticket). If you have no money then you will be given a 'nil paid' penalty fare.

You must then send a copy of your valid season ticket to the address shown on the penalty fare. If you don't do this within 21 days you will be asked to pay the full amount for the journey undertaken.

This relates to forgotten season tickets, not ones which are, to all intents and purposes, lost.

I note that 3)c) does talk about *owning* a season ticket but I think no reasonable person would interpret this as "I paid for one, I lost it (by whatever means), therefore all penalty fares I am issued are null and void"

It's a weekly season. Why can't it have been given to someone else, for example?

The receipt which was attached previously, together with internal purchase records which GTR can obtain, is sufficient proof in my view.

What is the likelihood of someone who lives in Bexhill and goes to college in Eastbourne buying a £13.95 ticket from Eastbourne ticket office, that isn't a season ticket from Bexhill to Eastbourne...

This is relying on discretion and hence I think it is a compelling ground for appeal rather than a strictly legalistic one as per the Regulations.

 

[AndrewE]

The train would appear to be 1U43 1552 ex Ore due Eastbourne at 1631, and the PFN was issued 9 minutes later.

Does the X after the fare on the Pevensey Bay ticket indicate it was paid for by card? If so, it may be possible to prove it was not purchased by the OP's son.

how relevant is that? Is a parent not allowed to pay for their offspring's ticket? "Not transferable" isn't exhaustive, if it was one member of a party couldn't buy tickets for a group.

 

[Bletchleyite]

how relevant is that? Is a parent not allowed to pay for their offspring's ticket? "Not transferable" isn't exhaustive, if it was one member of a party couldn't buy tickets for a group.

Tickets (other than seasons) are now transferrable in any case, as long as they are not sold for more than the face value.

 

[Watershed]

Well, "held" means they would need to show it in retrospect, and prove its existence to the appeal. Which they can't do.

GTR have purchase records which mean they can reconcile whether or not a season ticket was owned. Season tickets aren't anonymous.

"Held" does not necessarily mean that the actual season ticket needs to be produced. That is a requirement which some train companies seem to try to impose into the legislation, but it is not there.

From Southern's site:

If you find that you don’t have your season ticket once you're on the train, you’ll be asked to give your details and to pay the standard single fare for your journey (which will be refunded on production of your valid season ticket). If you have no money then you will be given a 'nil paid' penalty fare.

You must then send a copy of your valid season ticket to the address shown on the penalty fare. If you don't do this within 21 days you will be asked to pay the full amount for the journey undertaken.

This relates to forgotten season tickets, not ones which are, to all intents and purposes, lost.

With respect, none of this changes the wording of the Regulations. It is merely their interpretation of how the procedure should work - which conveniently puts the burden on the passenger rather than the train company, which actually holds all of the necessary data.

I note that 3)c) does talk about *owning* a season ticket but I think no reasonable person would interpret this as "I paid for one, I lost it (by whatever means), therefore all penalty fares I am issued are null and void"

I would disagree. There is also a limit of 2 such appeals (seemingly in your lifetime?) under Regulation 16(10), so it's not as if this is an open-ended invitation to misplace your season ticket every day.

It's a weekly season. Why can't it have been given to someone else, for example?

Because it has a photocard number printed on it; without producing the corresponding photocard the season iticket is not valid.

 

[AlterEgo]

Because it has a photocard number printed on it; without producing the corresponding photocard the season iticket is not valid.

I must have missed this but you're right - it's now a requirement again for weeklies to have photocards. Didn't use to be!

 

[Tetchytyke]

The holding of the 16-17 Saver changes everything.

I would appeal and keep the appeal short and succinct:
He held a 16-17 Saver- and a copy is attached;
He purchased a season ticket that morning using that Saver- and a receipt is attached;
He holds a Photocard- and a copy is attached;
He held a valid ticket which was incorrectly retained by the barrier;
The barriers retained his ticket and staff refused to inspect the barrier.

The second stage appeal is as “independent” as the first, i.e. not at all, so you may need to go to the third stage.

I would separately raise a complaint for a refund of the season ticket which was retained incorrectly.

 

[BRX]

I would separately raise a complaint for a refund of the season ticket which was retained incorrectly.

How likely is this to be successful, and how quickly if it is?

It would certainly be useful to the OP if this claim had already been accepted by the time the 3rd appeal rolls around. If the train company accepts that their machine ate the ticket then it would seem case closed for the penalty fare appeal.

 

[OhNoAPacer]

How likely is this to be successful, and how quickly if it is?

It would certainly be useful to the OP if this claim had already been accepted by the time the 3rd appeal rolls around. If the train company accepts that their machine ate the ticket then it would seem case closed for the penalty fare appeal.

I rather suspect any reimbursement would come caveated and be given as a goodwill gesture.

 

[Haywain]

it's now a requirement again for weeklies to have photocards. Didn't use to be!

It always has been a requirement, other than in recent years for London travelcards

 

[Watershed]

Mod note:

There have been a number of off-topic posts which I have had to delete. Please can we stick to the topic of helping the OP with their appeal for now. Thank you.

 

[furlong]

To understand what really happened, you need the log from the ticket gate examining, including what tickets it recorded seeing just before and just after.

You also need to know what happened to the next person who tried to use the ticket gate!

Machines can make mistakes but so can humans.

The gate could even have still been open in front of the previous passenger who walked through and put their ticket into the top to dispose of it!
(This does happen.) Followed by this passenger forcing their ticket into the front slot and taking the previous one from the top.

If the hopper is full does the gate stop retaining tickets?

Inexcusable not to have opened the gate to investigate though.

You could also ask the ticket office to read the magnetic stripe of the Senior Railcard ticket - to find out the time and location where it says it was last successfully used. (Unused? Pevensey & Westham on entry? Eastbourne on exit - shouldn't happen if ticket was meant to be retained? Unused?)

Appeal using 16(3)(c) as described above and add in compelling reasons based on the absurdity already explained.

 

[Eastbourne]

Just an observation as you progress through the appeals process. (Not a criticism or calling anyone out for being dishonest)

These statements could be seen as being contradictory. Proof read everything more than once, get help with a draft here, read it through the eyes of a cynical appeals processor and ask if anything doesn’t look right

Just working through new posts in order...
Thanks for good advice.
I guess no prior experience, direct or vicarious, of this sort of situation in only c. 60 actual weeks of train usage... but I agree with your point

To understand what really happened, you need the log from the ticket gate examining, including what tickets it recorded seeing just before and just after.

You also need to know what happened to the next person who tried to use the ticket gate!

Machines can make mistakes but so can humans.

The gate could even have still been open in front of the previous passenger who walked through and put their ticket into the top to dispose of it!
(This does happen.) Followed by this passenger forcing their ticket into the front slot and taking the previous one from the top.

If the hopper is full does the gate stop retaining tickets?

Inexcusable not to have opened the gate to investigate though.

You could also ask the ticket office to read the magnetic stripe of the Senior Railcard ticket - to find out the time and location where it says it was last successfully used. (Unused? Pevensey & Westham on entry? Eastbourne on exit - shouldn't happen if ticket was meant to be retained? Unused?)

Appeal using 16(3)(c) as described above and add in compelling reasons based on the absurdity already explained.

Thank you very much.

Is it possible to get a log from the gate of what happened to tickets? I guess that a demand for that sort of annoying to retrieve information might help the appeal?

The tip with the Senior Railcard ticket analysis is a good one. Won't be conclusive but can build the case based on probability of events.

The 16(3)(c) usage seems a bit uncertain to me. Are we saying that because he has a valid 16-17 Saver card that the Penalty Fare applied is wrong?

I had promising news on CCTV in that they didn't find any grounds to refuse my request and have initiated it within the 28 day period. I realise no guarantee but promising.

I only have about 10 days to complete 2nd appeal so I'll attempt a draft tomorrow. Thanks to all again.

 

[Haywain]

Is it possible to get a log from the gate of what happened to tickets? I guess that a demand for that sort of annoying to retrieve information might help the appeal?

I have never seen anything that would provide the level of detail suggested.

 

[Eastbourne]

The letter they sent about payment says if I don't pay in time then it becomes £100 plus "the full single fare" but should the Penalty Fare have been charged at the lower amount?

 

[Watershed]

The letter they sent about payment says if I don't pay in time then it becomes £100 plus "the full single fare" but should the Penalty Fare have been charged at the lower amount?

Can you clarify what you mean by the 'lower amount'?

 

[Mcr Warrior]

Can you clarify what you mean by the 'lower amount'?

The attachments in post #9 possibly refer.