• Our booking engine at tickets.railforums.co.uk (powered by TrainSplit) helps support the running of the forum with every ticket purchase! Find out more and ask any questions/give us feedback in this thread!

SWR Strike - Do I really have to accept 2.5 hour delay on pre-booked ticket

Status
Not open for further replies.

joncombe

Member
Joined
6 Nov 2016
Messages
765
I have the response from my case with the Ombudsman but they have sided with SWR.

I've pasted the response in full below (other than removing names).

Dear Mr XXXXX

I am contacting you as the Assistant Ombudsman that has been assigned to your case with South Western, concerning the disruption that you experienced to your journey, due to South Western’s December strikes. I note that you state that this resulted in you arriving at your destination more than 2 hours later than expected on 29 December 2019.

I have now been able to do a full review of your case taking into account the evidence you have provided, and the evidence submitted by the Rail Service Provider ("RSP"). Having reviewed the evidence, and the concerns you have raised in your application form; I have made a decision in the case.

I understand from your application form that the remedy you are seeking is a refund of your tickets, due to the fact that you were delayed on your journey from Woking to Bath Spa.

The RSP’s Passenger Charter affords compensation to passengers who have been delayed by 15 minutes or longer, which also applies if your train is delayed or cancelled and means you miss your connecting train. Nevertheless, if an emergency or amended timetable is in place, this will be published beforehand and your Delay Repay compensation for delays is calculated according to the revised timetable.

The RSP has stipulated the following;

‘We were only given 5 weeks’ notice from the Union that they were going to be holding a month-long strike. We did our best to run the possible service given the situation. This was highly advertised and picked up by the media and all over the news and radio and Consumers were advised to check journeys if travelling throughout December. During such a strike we operate a revised timetable and you may only claim compensation based on the amended timetable.’

I note from your application form that you were told that the cancellation was due to engineering works. The RSP has confirmed that there were engineering works being carried out on their route past Bath, however, has explained that this would not have affected your journey and the train was cancelled due to industrial action.

In line with the above and having assessed the complaint in accordance with the National Rail Conditions of Travel, the RSP’s Passenger Charter, and the respective legislation, I note that the RSP have not acted incorrectly. I must ascribe weight to the RSP’s Passenger Charter regarding the terms of their Delay Repay scheme and note that compensation is not due on this occasion. I therefore consider there to be no legal basis to investigate your complaint any further and do not consider there to be any scope for mediation. I shall therefore be closing your dispute with the Rail Ombudsman.

I understand that my comments may disappoint, however, as the consumer you are not bound by any decision of the Rail Ombudsman, and this decision does not dissolve you of your rights to pursue the claim through alternative channels if you wish to do so.

As I've also previously posted in their first response to my complaint I was advised that I could only be repaid for delays by submiting a claim using their online Delay Repay form or the form at stations and that this would be measured against the amended timetable. Nevertheless I did just that and my claim was approved (despite SWR stating that they would only pay against the revised timetable not the one that was in place at the time of booking). The money has since gone into my bank account.

So despite it all I'm not out of pocket.

So I don't think I will be able to take this further since I've now been refunded (despite what SWR said). I do think having read the terms and conditions in detail this response is wrong.

  • The National Rail Conditions are clear you can claim under the TOCs Delay Repay scheme or the National Rail Conditions and make clear that the criteria in the National Rail Conditions is the minimum that can be applied. This gives a 50% refund due to a 1 hour or more delay as a result of a train delay or cancellation - which was the case for me. So whatever SWR put in their charter doesn't take predence over these conditions (though the Ombudsman seems to disagree). The National Conditions don't have any clauses about subsequent timetable amendment. The Delay Repay publicity also doesn't make clear this does not apply if the timetable is later "amended" and I don't think passengers should have to dig into the passengers charter to see if there are any "get out" clauses. After all offering delay repay after 15 minutes was very heavily publicised at the time the franchise was awared of one of the improvements.
  • The Consumer Rights Act 2015 (which is now reference in the National Rail Conditions) also makes clear that if you make a purchasing decision based on information provided at the point of sale these are binding unless a variation is agreed by both parties. I booked the ticket on the basis of the information presented, that this train would be running and my ticket was only valid on that train. SWR subsequently cancelled the train and the only alternative is to get there 2.5 hours later than the times I booked. I made clear that had I known this would be the case I would have booked with GWR via Reading. However neither the Omudsman nor SWR have made any reference to this law in their responses even though I explicitly mentioned it and the relevant clauses in my complaint. Payment was taken at the time of booking so I believe a contract was formed at that point.
The SWR charter on the website is also dated November 2019. It doesn't state when in November it came out but I booked the ticket on the 3rd November and it is possible this clause was added to the charter after I booked the ticket. I cant prove it because I can't find any way to see what the charter said prior to this point now but it is a possibility.

The strike isn't my fault (I don't work in the rail industry or for any unions) and my contract is with SWR (not Network Rail, the RMT or whatever) so I feel they should be responsible for the failure to deliver the advertised service when I booked my ticket.

It is also the case that the "amended timetable" was only published 2 days before I was due to travel. It does seem to me the Ombudsman has taken the view that if the timetable is amended then delay repay is only valid against the amended timetable. But how much notice must there be? Otherwise surely if a train was cancelled or delayed a TOC can claim this wasn't the case and the timetable has been "amended" to the new time whenever it happens to get out of paying compensation. I also think it's wrong that the timetable can be amended without any notification to the passengers that have already booked a ticket that is for a specific train. Airlines are obliged to at least notify you if a flight you have booked is cancelled or "re-timed" (and offer a refund or change to an alternate flight at no extra cost). I think the same should apply for trains when tickets are booked onto a specific service and are non-refundable or amendable. It has been previously ruled in cases with airlines that strike actions is NOT considered "outside of their control" (and I've been in exactly that situation in the last year by an airline when the flight I was booked on was cancelled due to an air traffic control strike and treated very well with taxis to another airport, overnight hotel, meals etc all paid for by the airline).

The terms and conditions of Advance tickets are clearly very one-sided. If after I've booked the ticket i want to amend it to travel at a different time or cancel it I must pay a £10 admin fee (and for a change, any difference in the fare - but no refund if the new fare is lower). If the TOC decided to "amend" the timetable I don't get to charge them an admin fee or claim for the delay that this change caused. It's not a fair condition and means the TOC can fundamentaly change the service they sold at a later date at no risk to themselves.

So I suppose lesson learned. For me walk up tickets aren't affordable to me on long-distance journeys, so I book in Advance so that is affordable. But if the ruling is the TOC can change the times of the booked train with no come back from the passenger then I guess in future I'll have to change my approach and plan longer journeys by car or plane.
 
Sponsor Post - registered members do not see these adverts; click here to register, or click here to log in
R

RailUK Forums

Starmill

Veteran Member
Fares Advisor
Joined
18 May 2012
Messages
23,224
Location
Bolton
The terms and conditions of Advance tickets are clearly very one-sided.
I think it would be more accurate to say that although the terms could be written more clearly, the company is abusing them to act unlawfully in refusing to pay compensation.

Although if you were not out of pocket on this occasion then perhaps not towards you.
 

joncombe

Member
Joined
6 Nov 2016
Messages
765
Ask them for confirmation that you are in deadlock so you can refer them to the ombudsman.

Have you referred the consumer law breach to the ORR?

Here is the response I have had which I have quoted in full. Not very helpful I'm afraid.

Thank you for your email of 24th January.



It may be helpful if I first briefly explain how the national rail network is regulated:



· The national rail infrastructure (track, signals etc.) is owned and maintained by Network Rail - https://www.networkrail.co.uk/.

· There are a number of passenger train and freight operating companies that run services on Network Rail.

· The majority of passenger train operating companies franchises including South Western Railway (SWR) are awarded and monitored by the Department for Transport (DfT). https://www.gov.uk/government/organisations/department-for-transport.

· Transport Focus is the independent national rail consumer watchdog set up to look after passenger interests http://www.transportfocus.org.uk/.

· The Office of Rail and Road (ORR) principal functions in relation to rail is to regulate Network Rail and enforce health and safety legislation on Britain’s Railways.

· The Rail Ombudsman can also be contacted to investigate unresolved complaints about railway companies Rail Ombudsman.



I forwarded details of your concern to our Consumer Policy team and they have provided the following advice.



ORR is the independent safety and economic regulator for Britain’s Railways. We are committed to improving accessibility of the rail network and to promoting the rights of passengers requiring assistance and the services available to them.



We are not a consumer organisation that investigates individual complaints against train or station operators, (although we do investigate safety concerns).



If you have such a complaint, you should always contact the responsible train or station operator in the first instance. DfT is responsible for compensation policy.




I note that SWR initially refused to provide compensation for the journey which you had originally booked. However, SWR has announced This week that it is providing compensation for travellers affected by the strikes. You can find out more here: https://www.southwesternrailway.com...ge-for-customers-affected-by-december-strikes



If you are dissatisfied with SWR’s handling of this matter or if you consider that you may be due further compensation, it remains open to you to make a claim under the Consumer Rights Act to the company. Should you be dissatisfied with SWR’s response you have the right to escalate your complaint to the Rail Ombudsman.
 

joncombe

Member
Joined
6 Nov 2016
Messages
765
go to the ombudsman!

SWR are a rotten company.
I already did - they sided with SWR (who despite insisting they wouldn't DID eventually refund my ticket, but with no explanation why given they previously insisted they wouldn't).
 

yorkie

Forum Staff
Staff Member
Administrator
Joined
6 Jun 2005
Messages
67,430
Location
Yorkshire
Sorry I just saw post 33 which said "Should you be dissatisfied with SWR’s response you have the right to escalate your complaint to the Rail Ombudsman."

I am not sure what to do next; either https://www.gov.uk/make-court-claim-for-money or a credit card chargeback

The Ombudsman appears to be spineless and unknowledgeable; we were promised so much, but the truth turned out to be they are not much better than Transport Focus.

Do they actually employ anyone who is remotely knowledgeable about consumer and contract laws? On the face of it, I doubt it.
But if the ruling is the TOC can change the times of the booked train with no come back from the passenger then I guess in future I'll have to change my approach and plan longer journeys by car or plane.
That does appear to be the attitude some companies in the rail industry take.
 

Chris Butler

Member
Joined
23 May 2010
Messages
275
If I have understood it correctly:
  1. The ORR have said that they have no role in individual consumer complaints. I think that is correct.
  2. The ombudsman has given an opinion that the compensation schemes only operate by reference to the revised timetable offered in light of the industrial action. Since the scheme has a kind of 'force majeure' clause, that doesn't seem obviously wrong.
  3. The Consumer Rights act, I think, allows you a remedy of repeat performance or a price reduction. You have had a full refund.
  4. General contract law would apply (in addition to the Consumer Rights Act) since the contract was breached, but you would have to overcome the 'force majeur' clause in the T&Cs applicable, the fact that you had time to mitigate the damages you suffered and also show that the damages you suffered were greater than the value of the full refund you have received. You also have to punt the £50 (or more) fees and the time and effort involved.
If that's correct then I'd be doubtful that going further is going to be fruitful.
 

infobleep

Veteran Member
Joined
27 Feb 2011
Messages
12,556
If I have understood it correctly:
  1. The ORR have said that they have no role in individual consumer complaints. I think that is correct.
  2. The ombudsman has given an opinion that the compensation schemes only operate by reference to the revised timetable offered in light of the industrial action. Since the scheme has a kind of 'force majeure' clause, that doesn't seem obviously wrong.
  3. The Consumer Rights act, I think, allows you a remedy of repeat performance or a price reduction. You have had a full refund.
  4. General contract law would apply (in addition to the Consumer Rights Act) since the contract was breached, but you would have to overcome the 'force majeur' clause in the T&Cs applicable, the fact that you had time to mitigate the damages you suffered and also show that the damages you suffered were greater than the value of the full refund you have received. You also have to punt the £50 (or more) fees and the time and effort involved.
If that's correct then I'd be doubtful that going further is going to be fruitful.
Sure it is within their control as they could settle the dispute. I'm not a lawyer though so maybe my point isn't taken into account.
 

Starmill

Veteran Member
Fares Advisor
Joined
18 May 2012
Messages
23,224
Location
Bolton
If I have understood it correctly:
  1. The ORR have said that they have no role in individual consumer complaints. I think that is correct.
  2. The ombudsman has given an opinion that the compensation schemes only operate by reference to the revised timetable offered in light of the industrial action. Since the scheme has a kind of 'force majeure' clause, that doesn't seem obviously wrong.
  3. The Consumer Rights act, I think, allows you a remedy of repeat performance or a price reduction. You have had a full refund.
  4. General contract law would apply (in addition to the Consumer Rights Act) since the contract was breached, but you would have to overcome the 'force majeur' clause in the T&Cs applicable, the fact that you had time to mitigate the damages you suffered and also show that the damages you suffered were greater than the value of the full refund you have received. You also have to punt the £50 (or more) fees and the time and effort involved.
If that's correct then I'd be doubtful that going further is going to be fruitful.
It doesn't seem to me that there is a relevant force majure term here. Regardless of that, however, if it can apply anyway I would suggest that the test here has not actually been met.

Aside from that it seems you have the right of it. I must have misread the previous posts because I hadn't clocked hat the full ticket price has been refunded.

I would add that if the consumer had some evidence of consequential losses arising from the actions of the company, they could, in addition to all of the above, make a claim for damages in respect of that. It's not clear that this applies here.
 

Starmill

Veteran Member
Fares Advisor
Joined
18 May 2012
Messages
23,224
Location
Bolton
Sorry I just saw post 33 which said "Should you be dissatisfied with SWR’s response you have the right to escalate your complaint to the Rail Ombudsman."
I also think that the trail of this case is a bit too confusing to offer the best advice.

Where does it say that the OP was refunded?
 

Haywain

Veteran Member
Joined
3 Feb 2013
Messages
14,869
It looks like a few of us missed this:
Now I have received confirmation that the Delay Repay has been approved - despite the very strong message from SWR that they wouldn't pay Delay Repay except against the amended timetable.
 

Chris Butler

Member
Joined
23 May 2010
Messages
275
It doesn't seem to me that there is a relevant force majure term here. Regardless of that, however, it can apply anyway. I would suggest that the test here has not actually been met.

I'm not sure what you call Para 33.4 of the National Rail Conditions of Travel, but I called it a "kind of force majeure clause". Its applicability isn't clear to me, but since the Ombudsman has given their judgement the only real question is: "Was their judgement obviously wrong?". I think it was not obviously wrong.

I would add that if the consumer had some evidence of consequential losses arising from the actions of the company, they could, in addition to all of the above, make a claim for damages in respect of that. It's not clear that this applies here.

I think that it was included in point 4 of my post. It was certainly intended to be.
 

Starmill

Veteran Member
Fares Advisor
Joined
18 May 2012
Messages
23,224
Location
Bolton
Its applicability isn't clear to me, but since the Ombudsman has given their judgement the only real question is: "Was their judgement obviously wrong?". I think it was not obviously wrong.
I disagree.

The Ombudsman isn't a court - their adjudications (not judgements) aren't relevant if the Consumer doesn't agree with them. It's also made clear as part of the Ombudsman process that the consumer may reject anything that the Ombudsman decides, while the firm may not.

Of course, the company might try to submit the adjudication of the Ombudsman as evidence, but the Judge would not take it as a starting point. A consumer might rely on the facts and the law, without reference to the Ombudsman's adjudication, in making their case. Naturally, this may not prevent them from coming to the same conclusion, that there is no money owed, through their own reasoning in their own judgement.
 
Last edited:

packermac

Member
Joined
16 Sep 2019
Messages
543
Location
Swanage
I'm not sure what you call Para 33.4 of the National Rail Conditions of Travel, but I called it a "kind of force majeure clause". Its applicability isn't clear to me, but since the Ombudsman has given their judgement the only real question is: "Was their judgement obviously wrong?". I think it was not obviously wrong.
Yes I would tend to agree with that view. However this is an very interesting legal issue.
The previous (which I still have) SWR Passenger Charter says the same as the current one in regard to delay repay being only paid against an emergency timetable if one is in place, and makes no mention in respect to how far in advance it should be issued.
The Consumer Rights Act 2015 excludes problems caused by events not in the train companies control.
Now this brings us back to the argument I had with many suppliers over the fact of strikes being covered by Force Majeure. It can of course be argued any strike can be resolved by giving in to what the workforce want. However we all know SWR (as much as I think they are an awful outfit) have no control over outcome of the strike issue. But would SWR and the DfT be prepared to admit that in a Court Of Law? I doubt it!
Pleased the OP got some money for the claim I guess it is really
SWR - Caveat Emptor
 

Chris Butler

Member
Joined
23 May 2010
Messages
275
I disagree.

The Ombudsman isn't a court - their adjudications (not judgements) aren't relevant if the Consumer doesn't agree with them. It's also made clear as part of the Ombudsman process that the consumer may reject anything that the Ombudsman decides, while the firm may not.

Of course, the company might try to submit the adjudication of the Ombudsman as evidence, but the Judge would not take it as a starting point. A consumer might rely on the facts and the law, without reference to the Ombudsman's adjudication, in making their case. Naturally, this may not prevent them from coming to the same conclusion, that there is no money owed, through their own reasoning in their own judgement.

You're pretty feisty today ;)

My comments about the Ombudsman were number 2 in the list in my original post. Following them were numbers 3 and 4 which covered exactly the point you are making, namely the possible redress available from the courts under consumer law (my point 3) and general contract law (my point 4). in short, yes, the Ombudsman is not the end of the line legally (a point that the Ombudsman made very clear in their e-mail).

My comment that the only real question is: "Was their judgement obviously wrong?" was not intended to mean that the Ombudsman's adjudication is conclusive. It was meant to convey "As with almost all adjudications, there are points for and against, but the real question that we (on this thread) should ask ourselves is whether this adjudication was so extreme or so flawed as to be obviously wrong.". Some has suggested it was. I don't agree that it was.

Finally "to adjudicate" means "to make an official judgment or decision" (Collins English Dictionary). The categorical distinction that you are drawing between "judgements" and "adjudications" escapes me.
 

Chris Butler

Member
Joined
23 May 2010
Messages
275
I mean South Western Railway. As they could agree to the RMTs terms and settle it.

Got it. So you are saying that the delays were not out of SWT's control because they had the power to settle the dispute by capitulating.

I really don't know what the courts would make of that. Like I said, you can argue for or against the Ombudsman's decision, but I do think it is difficult to argue that it is obvious that they were wrong. I'm not making any stronger statement than that.

Just to be clear, I also think it is not obvious that they were right. Their decision fell in the grey area where someone has to make a call one way or the other ... which is, in the end, what Ombudsmen are for.
 

Starmill

Veteran Member
Fares Advisor
Joined
18 May 2012
Messages
23,224
Location
Bolton
You're pretty feisty today ;)
I could try to respond to the logic of your argument, but if we've reached this level of discourse I'll just make it clear that I'm satisfied that your point of view on this is quite wrong, and we shall leave that there.
 

bb21

Emeritus Moderator
Joined
4 Feb 2010
Messages
24,151
I have the response from my case with the Ombudsman but they have sided with SWR.

I've pasted the response in full below (other than removing names).
...

So, aside from all the other (interesting) arguments by various people, what is it that you want to achieve by taking this further? I think only by clearly answering this question can we really recommend a suitable next course of action. I am currently at a loss what your objectives are so all the follow-on outrage and counter-rage are serving very little purpose.
 

Chris Butler

Member
Joined
23 May 2010
Messages
275
I could try to respond to the logic of your argument, but if we've reached this level of discourse I'll just make it clear that I'm satisfied that your point of view on this is quite wrong, and we shall leave that there.

It was meant to be a jocular comment ... hence the 'wink' at the end.

I take no offence or umbrage at what you have said. No need to withdraw ... I'm very happy to receive your comments. Sorry if I gave the opposite impression.

What amused me is that you started with "I disagree" and then seemed to me to proceed to agree with me.

Please do go ahead. I will try to cut out quips that can mislead !
 

infobleep

Veteran Member
Joined
27 Feb 2011
Messages
12,556
How can SWR agree to a demand to give an undertaking that goes beyond the end of their franchise?
Well I was just assuming whatever was agreed between the RMT and other TOCs could be agreed here and thus force majeure wouldn't apply.

I don't know if the RMT are looking for thr same here and nor do I wish to discuss it, as that isn't what this thread is about. Just that I felt force majeure couldn't be applied.

I might be wrong of course.
 
Status
Not open for further replies.

Top