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Review of the Penalty Fares Appeal Process by Transport Focus

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Baxenden Bank

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A report has been published by Transport Focus, detailing their review of the Appeal Process relating to Penalty Fares.

As strange as regular readers may find, it concludes that the process is neither transparent nor rigourous.

It makes the following recommendations:

Recommendations
Transport Focus continues to receive appeals from passengers which are later overturned following our intervention. This suggests that the appeal process is not robust.
As such, we recommend the following steps be taken to ensure fairness, independence and consistency:
• Passengers must be made aware of whole appeals process from the outset, their right to appeal and how to do this at every stage in the process. Letters should be clear, in plain English and have instructions for progressing to the next stage of the process should the passenger wish to do so.
• Passengers should be able to contact the appeals body directly should there be any urgent queries or concerns.
• The point of access to the Independent Appeal Panel must be more independent from the appeal bodies that are assessing first and second stage appeals. We suggest that the training of the panel should be carried out by an independent body.
• There must be a consistent approach in reviewing appeals and all mitigating factors must be considered prior to rejecting an appeal. If a train operator overrules a second or third stage appeal following Transport Focus’ intervention, and will always do so under the same circumstances, a process must be put in place to ensure that this discretion is being applied at first stage appeal, where appropriate.
• Consistent messaging should be in place to ensure that front line staff are not misinforming passengers regarding the appeal process.
• Publication of penalty fare statistics as detailed above.

Personally, I would have liked to have seen some statistics in the report regarding the number of Penalty Fares issued etc. If nothing else, statistics of the number of enquiries/complaints received by Transport Focus themselves on this matter and the outcome of those when taken to a TOC.
 

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Baxenden Bank

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This is a link to the original press release, dated 3 February 2020 but only picked up by Railway Gazette yesterday (17 February 2020).

https://www.transportfocus.org.uk/n...assengers-are-still-being-unfairly-penalised/

Full Text:
Watchdog asks why passengers are still being unfairly penalised
3rd February 2020

How can passengers trust the railway if they still get penalised for genuine mistakes, asks the watchdog.

Independent watchdog Transport Focus has investigated how passengers are treated when they appeal a penalty fare.

New regulations came into force in 2018, that allowed passengers to take their appeal to two independent bodies. But the watchdog, working with London TravelWatch, has found that there are problems with signposting of the service, poor attempts to investigate what happened, a lack of discretion shown, poor quality responses being sent and a lack of transparency.

  • One passenger had to rush to the hospital as she was experiencing concerning symptoms relating to her pregnancy. She was unable to buy a ticket and the ticket inspector issued her with a penalty fare despite her explanation. Due to her health she then missed the date to appeal the penalty. She got in touch with Transport Focus who immediately acted to get the penalty fare cancelled.
  • Another passenger went through the appeal process after being issued a Penalty Fare Notice (PFN). After being rejected by the first two stages he went to the Independent Appeal Panel’s website. As the website wasn’t clear and there were no other contact details he did not know where to submit the appeal. He used a webform to ask ‘Is this the site where I make a 3rd appeal’ to then receive a response from the Independent Appeal Panel stating that had been his third appeal.
David Sidebottom, director at the independent watchdog Transport Focus, said:

“We have long called for the rail industry to show discretion where passengers haven’t intended to evade paying fares. As our investigation shows, there is still a long way to go.

“It is right that train companies should take steps to stop those who try to evade paying fares. But passengers must be able to trust that penalty fares are given only to those who deserve them rather than treating honest passengers as criminals.

We would like to see increased clarity and consistency over the entire process for passengers.”

The watchdog is calling for:

  • increased and more effective communication by appeal bodies and train operators about whole appeals process
  • consistency in the process by which penalty fares are given and when they can be overturned
  • transparency about the numbers of penalty fares given and appealed at each stage as well as those overturned or upheld.

Railway Gazette link
https://www.railwaygazette.com/uk/t...alty-fare-appeals-investigation/55748.article

and full text:
Transport Focus publishes penalty fare appeals investigation
17 February 2020
UK: Transport Focus has published its Penalty Fares – the Appeals Process investigation into how passengers are treated when they appeal a penalty fare to two independent bodies under the regulations which came into force in 2018.

The watchdog found problems with the signposting of the service, poor attempts to investigate what happened, a lack of discretion shown, poor quality responses and a lack of transparency.

It calls for:

  • increased and more effective communication by appeal bodies and train operators about the whole appeals process;
  • consistency in the process by which penalty fares are given and when they can be overturned;
  • transparency about the numbers of penalty fares given and appealed at each stage as well as those overturned or upheld.
‘We have long called for the rail industry to show discretion where passengers haven’t intended to evade paying fares’, said Transport Focus director David Sidebottom on February 3. ‘It is right that train companies should take steps to stop those who try to evade paying fares. But passengers must be able to trust that penalty fares are given only to those who deserve them rather than treating honest passengers as criminals. We would like to see increased clarity and consistency over the entire process for passengers.’
 

yorkie

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The problem is that the entire PF system is intended to penalise people who are not accused of attempting to evade the fare.

Nevertheless this is good work from Transport Focus and yet more evidence that train companies are mistreating their so-called customers.

I'd very much like to challenge key individuals like Leo Goodwin and David Brown, such as at a 'meet the manager' session; they wouldn't be able to answer my questions though so they would never agree to it.

David Sidebottom does some good work but he doesn't really fully understand the issues faced by customers.
 

furlong

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The problem is that the entire PF system is intended to penalise people who are not accused of attempting to evade the fare.

It is absolutely not intended to penalise such people. There is no requirement for any authorised collector to issue a penalty fare where there does not appear to be any attempt at evasion rather than just selling a normal ticket.

What seems to have gone wrong is that in the privatised environment some train companies have inevitably started exploiting some of the inadequacies of the rules and hiding behind literal interpretations that suit them (while disregarding the rules that don't suit them, such as the mandatory signage requirements) instead of applying common sense and discretion as originally envisaged by parliament.

This is an excellent report from Transport Focus - yet it still needed to go much further.
- The focus should be less on appeals and more on making sure that authorised collectors have access to the necessary resources and training to ensure that penalties are not issued incorrectly in the first place.
- Call out the gross disregard across almost the whole industry of the existing signage requirements.
- Call out the dreadful mandatory posters (which remain unfit for purpose - it's appalling that some of the non-compliant signage does a better job).
- Call out the disproportionate level of the penalty on longer journeys (the penalty element should be capped at a fixed amount).
- Call out the disproportionate effect of "admin fees" (which should be regulated and notified BEFORE they are incurred - people are familiar with the idea that a penalty is lower if you pay it promptly but they need to be given the full details at the time the penalty is issued).
- Call out the way the removal of the fast PERTIS machines and machines that accept cash and the slowness of the new style of ticket machines exacerbates queueing and undermines key assumptions of the scheme.
- Call out the way that some train companies undermine the scheme by trying to use a "loophole" to prosecute when a penalty isn't paid instead of using the civil courts in the way intended. (If they wanted to prosecute, then they should not have issued the penalty in the first place.)
- Provide checklists and templates (and examples for common industry failings) that guide people through writing their appeals.
 
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yorkie

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It is absolutely not intended to penalise such people.....
in that case, sufficient safeguards should be put in place to avoid this.

As things currently stand, the intention of train companies such as Chiltern is that "[A Penalty Fare] is not a fine, and anyone who is charged one is not being accused of avoiding, or attempting to avoid, paying their fare" ( https://www.chilternrailways.co.uk/...iles/timetables/Chiltern Penalty Fares v2.pdf )

At present people are being charged penalty fares when there is no intent to avoid payment of the fare.

I would like to see sufficient safeguards put in place to ensure that PFs are only issued where there is evidence of intent to avoid payment of the fare, however this is unlikely to happen, as I believe the Department for Transport are keen for people to be charged PFs for making mistakes under certain circumstances despite having no intention to avoid payment of the fare.

...in the privatised environment some train companies have inevitably started exploiting some of the inadequacies of the rules and hiding behind literal interpretations that suit them (while disregarding the rules that don't suit them, such as the mandatory signage requirements) instead of applying common sense and discretion as originally envisaged by parliament...
Several train companies are indeed keen to behave in such a manner, but I believe this is with the blessing of the anti-passenger DfT.
 

exesoundtech

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It is absolutely not intended to penalise such people. There is no requirement for any authorised collector to issue a penalty fare where there does not appear to be any attempt at evasion rather than just selling a normal ticket.

What seems to have gone wrong is that in the privatised environment some train companies have inevitably started exploiting some of the inadequacies of the rules and hiding behind literal interpretations that suit them (while disregarding the rules that don't suit them, such as the mandatory signage requirements) instead of applying common sense and discretion as originally envisaged by parliament.

This is an excellent report from Transport Focus - yet it still needed to go much further.
- The focus should be less on appeals and more on making sure that authorised collectors have access to the necessary resources and training to ensure that penalties are not issued incorrectly in the first place.
- Call out the gross disregard across almost the whole industry of the existing signage requirements.
- Call out the dreadful mandatory posters (which remain unfit for purpose).
- Call out the disproportionate level of the penalty on longer journeys (the penalty element should be capped at a fixed amount).
- Call out the disproportionate effect of "admin fees" (which should be regulated and notified BEFORE they are incurred - people are familiar with the idea that a penalty is lower if you pay it promptly).
- Provide checklists and templates (and examples for common industry failings) that guide people through writing their appeals.

Those "necessary resources and training" would likely need to include knowing that when dealing with ticket machines, and with the best will in the world, it's really easy to know when a machine is definitely not working; but really quite hard to know when it definitely is working. So any "check" on the TVMs by Revenue Protection or the Appeals Service can only definitively prove the customer's likely point of view that it wasn't working; proving the RP point of view that it was working just isn't definitive. For a reasonable ticket machine back office, there are plenty of circumstances where effectively the machine isn't working but the back office has no chance of knowing this position, such as:
  • Machine covered in something unmentionable;
  • Card reader or PIN Pad has been obstructed - I've heard of PIN pads being gummed up with glue amongst other challenges;
  • Touch screen calibration out;
  • Someone has blocked up the ticket outlet;
  • An unexpected software fault (or bug) not anticipated by the manufacturer where even the TVM thinks it's operational but it isn't.
All of which suggests that RPOs should be giving far more benefit of the doubt. I imagine the way those staff are given targets either for bonuses or appraisals may not help if set badly. You can imagine targets being set for numbers of Penalty Fares issued. To my mind that would be easy to fix with a target that only gives credit for PFNs that result in an upheld PF, and ones that are rescinded on appeal counting something like "-2" to encourage accuracy.

Might be an interesting FOI request in that when certain TOCs are considered public sector again...
 

furlong

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So any "check" on the TVMs by Revenue Protection or the Appeals Service can only definitively prove the customer's likely point of view that it wasn't working

The passenger will have a story about what happened in terms of how it was not working. The authorised collector should have access to sufficiently detailed logs from the machine (probably via someone at the end of a phone) to make a reasonable judgement on the spot. Everything the machine does can and should be logged and searchable - including every on-screen touch - and the systems should be highlighting the common anomalies (like timeouts, abandoned purchases, sections of the screen that have not recorded any touches, periods of lack of activity compared to a normal day etc.).
 

furlong

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As things currently stand, the intention of train companies such as Chiltern is that "[A Penalty Fare] is not a fine, and anyone who is charged one is not being accused of avoiding, or attempting to avoid, paying their fare" ( https://www.chilternrailways.co.uk/sites/default/files/files/timetables/Chiltern Penalty Fares v2.pdf )

Text like that is merely playing with words. Whether it's called a penalty or a fine the effect is the same - it is money you are compelled by law to pay. They are not being accused because there is no accusation involved in the process - but one still shouldn't be issued unless it would have been reasonable in the circumstances to make such an accusation.
 

Skymonster

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I would like to see sufficient safeguards put in place to ensure that PFs are only issued where there is evidence of intent to avoid payment of the fare.
Huh? I would hope that where there is evidence of intent to avoid payment then the normal course would be somewhat more severe than a penalty fare - i.e. such cases should result in the potential for legal action.

As you also effectively suggested (through quoting from Chiltern) penalty fares are more applicable when customers have failed to follow the rules where malfeasance is not evident. Clearly the balance here should be in favour of discretion when mitigating circumstances are presented, rather than creating an additional revenue stream.
 

furlong

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Huh? I would hope that where there is evidence of intent to avoid payment then the normal course would be somewhat more severe than a penalty fare

This is how it was explained to the House of Lords:
If, however, a passenger on a train is not in possession of a ticket, he is not to be treated as a criminal under this Bill. He is simply asked to pay a penalty fare, which is a civil penalty and not a criminal one. If there are good reasons why he has not been able to obtain a ticket before travelling, not even this civil penalty will be due. Only if there is evidence of an intent to avoid payment may the passenger be liable to prosecution. Then it would be under the existing provisions of the Regulation of Railways Act 1889 and not under the provisions of this Bill. One of the social benefits of this Bill is that it will take most ticketless travel outside the scope of the criminal law and will free the hard-pressed magistrates' courts to deal with other serious business.

And to yorkie's point about the DfT, they don't have much wriggle room:
In this case however the powers which Clause 3 of the Bill would grant to the Secretary of State form an important safeguard for the passenger. It would clearly be wrong to penalise the passenger who had not had a reasonable opportunity to purchase a ticket before travelling, and British Rail has no intention of doing that. No doubt my noble friend on the Front Bench will confirm to your Lordships that it is most unlikely that the Secretary of State will make an activating order to apply the Act to a line or group of lines until he is satisfied that the stations concerned are adequately staffed, are equipped, where required, with ticket and deferred fare authority machines, and that the scheme is adequately publicised by the display of notices at stations.

The Secretary of State's priorities will be to ensure that any scheme put forward by British Rail is accompanied by adequate operational arrangements and adequate safeguards for honest passengers. He will, for example, wish to be satisfied that ticket offices will be properly staffed; that the necessary ticket and deferred fare authority machines are in place; that publicity arrangements are satisfactory; that ticket inspectors are trained to operate the system; and that the procedures for disputes and appeals are adequate.

it is incumbent on us to make sure that in handing over this power to the servants of the railways board the innocent are protected, that they are not going to be unnecessarily harassed, that they are not going to be subjected to unfair treatment and that an adequate and simple appeals procedure exists.

Also worth noting
the provisions are designed for short journeys on very busy trains rather than for longer and more leisurely intercity journeys

from unstaffed stations no penalty fare will be payable provided the passenger proffers his fare to the ticket examiner or guard as soon as possible after joining the train. For example, let us suppose that there was an unusually long queue at a ticket office at a small station where no deferred fare authority machine was provided. In this case a passenger could certainly challenge any request for a penalty fare. If it were not possible to resolve the issue on the train the passenger would be issued with a penalty fare notice requiring payment within 21 days. He would have ample time to set out his case to the designated railway manager who, if he agreed, after checking with the station concerned, would thereupon withdraw the penalty fare notice.

on whom does the burden of proof rest to show that the machine was not in operation? That is the important point. It is my belief that the prime responsibility must be on British Rail to show that the machine was working at the specific time and place before that liability can be incurred. It should not be left to the passenger to prove the negative, which could be an almost impossible task in most circumstances.
 

35B

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And this is the basis on which I recall my encounter with the Penalty Fares regulations one hot summer's day in 1995 when I'd absent mindedly gone straight to the platform at Lewisham without paying (long story), and found myself ticketless at Waterloo East, being asked to pay a Penalty Fare. I'd displayed intent by my actions, and the Penalty Fare was the prescribed measure for non-payment.

We need to be careful to distinguish between Penalty Fares per se, and the specific failings of certain operators as they introduce Penalty Fare schemes without adequately providing for their customers (word chosen deliberately) to pay.
 

Baxenden Bank

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Those "necessary resources and training" would likely need to include knowing that when dealing with ticket machines, and with the best will in the world, it's really easy to know when a machine is definitely not working; but really quite hard to know when it definitely is working. So any "check" on the TVMs by Revenue Protection or the Appeals Service can only definitively prove the customer's likely point of view that it wasn't working; proving the RP point of view that it was working just isn't definitive. For a reasonable ticket machine back office, there are plenty of circumstances where effectively the machine isn't working but the back office has no chance of knowing this position, such as:
  • Machine covered in something unmentionable;
  • Card reader or PIN Pad has been obstructed - I've heard of PIN pads being gummed up with glue amongst other challenges;
  • Touch screen calibration out;
  • Someone has blocked up the ticket outlet;
  • An unexpected software fault (or bug) not anticipated by the manufacturer where even the TVM thinks it's operational but it isn't.
All of which suggests that RPOs should be giving far more benefit of the doubt. I imagine the way those staff are given targets either for bonuses or appraisals may not help if set badly. You can imagine targets being set for numbers of Penalty Fares issued. To my mind that would be easy to fix with a target that only gives credit for PFNs that result in an upheld PF, and ones that are rescinded on appeal counting something like "-2" to encourage accuracy.

Might be an interesting FOI request in that when certain TOCs are considered public sector again...
Cowboy Clampers. Let loose on the rail network.

As the report makes clear (albeit with a limited selection of examples) the so-called independent appeal is no such thing - all three stages. The cowboys involved not reading or understanding what people submit, even ignoring the TOC'S policy (which I assume has been communicated to them), resulting in TOCS refunding the Penalty Fare when presented with obvious cases where discretion should have been shown by anyone with an ounce of humanity. I don't necessarily blame the front-line operatives, they have no proof of individuals circumstances but I would expect the back-office appeal staff to do their job properly, diligently, thoroughly, professionally. Call it what you like but, on the evidence shown, it is none of those at present.

What we need now is a review of the appeals process, under the authority of the DfT but carried out by an independent expert. Lets have some numbers. How many PF's issued, how many appealed, how many overturned at each stage, how many after intervention by a TOC. Perhaps a review of a random sample of cases to see if PF's are being correctly issued in accordance with the PF rules.
 

Tetchytyke

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I don't necessarily blame the front-line operatives, they have no proof of individuals circumstances but I would expect the back-office appeal staff to do their job properly, diligently, thoroughly, professionally.

I do blame the front line staff who are much better placed to know whether the customer's story is plausible. We've seen too many instances where the issues stem from front-line staff who make up rules on a whim (Avanti say hello) or deliberately fail to appreciate known IT issues (online railcards). The issue then escalates because the "independent" appeals people just follow what the front line staff said in their report.

I comtinue to be astounded- ASTOUNDED- that the PF guidance on queue times is so comprehensively ignored by pretty much every TOC. It's almost as though the TOCs- and their bottom-feeding brethren at Transport Investigations- are rapaciously exploiting the PF scheme as a revenue generator.
 
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